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

By Felix Frankfurter; E. F. Prichard Jr. et al. | Go to book overview

Justice Holmes Defines the Constitution

Shortly after the commencement of Mr. Frankfurter's service in Washington with the War Department, his long personal intimacy with Mr. Justice Holmes began. Mr. Justice Holmes became not only a friend, but an important intellectual interest. The nature and extent of this interest are indicated by three of Mr. Frankfurter's articles in the Harvard Law Review (Vol. 29, p. 683; Vol. 36, p. 909; Vol. 41, p. 101) as well as his book, Mr. Justice Holmes and the Supreme Court, published in 1938. The following selection from the book appeared in the Atlantic Monthly for October, 1938, and is reprinted by permission of the President and Fellows of Harvard College.

THE HISTORY of the Supreme Court would record fewer explosive periods if, from the beginning, there had been a more continuous awareness of the rôle of the Court in the dynamic process of American society. Lawyers, with rare exceptions, have failed to lay bare that the law of the Supreme Court is enmeshed in the country's history; historians no less have seemed to miss the fact that the country's history is enmeshed in the law of the Supreme Court. Normally historians, much more than lawyers, guide the general understanding of our institutions. But historians have, in the main, allowed only the most spectacular decisions--the Dred Scott controversy or the Legal Tender cases--to intrude upon the flow of national development through their voluminous pages. The vital share of the Court in the interplay of the country's political and economic forces has largely escaped their attention. Not unnaturally the Court has been outside the permanent focus of the historian's eye. For the momentum of the Court's influence has been achieved undra-

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