American Political Thought

The Philosophic Dimension of American Statesmanship

Morton Grodzins, Richard Stevens

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351532389
• Edition: 3
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book focuses on the political thought of American statesmen. These statesmen have had consistent and comprehensive views of the good of the country and their actions have been informed by those views. The editors argue that political life in America has been punctuated by three great crises in its history the crisis of the Founding, the crisis of the House Divided, and the crisis of the Great Depression.The Second World War was a crisis not just for America but for the whole of Western Civilization and, in the wake of that war, a new crisis arose which came to be called the "Cold War." Just when that gave the appearance of being resolved, the world reached a new juncture, a new crisis, which Samuel P. Huntington dubbed the "clash of civilizations." The statesmen having political responsibility in confronting the first three crises in America's history came as close to philosophic grasp of the problems of liberal democracy as one could demand from those embroiled in the active resolution of events. Their reflection of political philosophy in the full sense informed their actions.Since we cannot confidently explain the future, Aristotle warned us to call no man happy while he still lives. Thus the book, in its third edition, keeps to its settled pattern of dealing with settled matters. The preface to the third edition confronts the three later crises and, to the extent consistent with truth, attempts to relate them to the first three.

Felix Frankfurter

Richard G. Stevens

Felix Frankfurter had four careers, any one of which would have been enough to fill another man’s life. Born in Vienna in 1882, he came with his family to New York at the age of 12 not knowing a word of English. He attended City College in New York and then the Harvard Law School where he was splendidly successful and from which he was graduated in 1906. By that time his facility with the English language was great. The precision, the driving force, and the colorful beauty of his English, both written and spoken, continued to develop throughout his life.¹

His first and his longest career was that of a reformer—longest because it lasted throughout his life, While he often praised the ordinary, small-town attorney with a general practice of law,² he never desired such a practice for himself. He really wanted to be a lawyer without clients.³ He wanted, that is, to immerse himself in the law itself, both because he had a zeal for justice (and law is in the service of justice),⁴ and because he had a keen desire for learning. After his graduation from the Harvard Law School in 1906 he quickly abandoned private practice in favor of a poorer-paying but more satisfying post in the office of the United States Attorney for the Southern District of New York, Henry L. Stimson.⁵ He followed Stímson first into a short interlude of private practice and then into the War Department and, being asked in 1913 to teach law at the Harvard Law School, joined that faculty in 1914.

His second career was that of an academic. It did not so much follow upon as change the manner of the first. He went back to the Law School as much to reform it and, through it, the law and public life, as to escape the “ ‘intellectual hand-to-mouth living’”⁶ he had found in serving the government. With occasional interruptions, such as his service back in the War Department (1917 to 3919), a year at Oxford (1933-34) and service on a variety of commissions, he was at the Law School from 1914 until his appointment to the United States Supreme Court in 1939.

Frankfurter’s third career—and “career” is not too strong a word for it —was as a confidant of Franklin D. Roosevelt. They had not met while both were students at Harvard, but they did meet shortly after Frankfurter’s graduation from the Law School, and they came to know each other well in 191 3 while the one was in the War Department and the other in the Navy Department.⁷ Just as the second career had not put a stop to the first, so the third was an addition to and an extension of the first two. The association of the two men became ever closer after Roosevelt’s election as governor of New York in 1928, and continued so throughout his governorship and presidency. Frankfurter’s advice on all matters of state was so bountifully given, an d was so well received by Roosevelt that their association excited great envy, fear and suspicion.

In January 1939, President Roosevelt appointed Felix Frankfurter an associate justice of the United States Supreme Court. This was his fourth, and his crowning career. He served on the Court for more than twenty-three years until a stroke forced him to retire in 1962. While on the Court, his correspondence with Roosevelt continued unabated until the letter’s death in 1945. His affection for Roosevelt was part and parcel of his affection for the United States. While it would be a mean and petty disservice to the memory of both men to suggest that Frankfurter “used” Roosevelt, it would be true to say that he saw Roosevelt as the vehicle of much good that might be done to the country—that is, the vehicle of reform. And, while on the Court, he kept up a prodigious output of papers and addresses, ranging from the anecdotal to the scholarly, such that it can truly be said he remained an academic just as he remained a confidant, despite his elevation to the Court, and, all three of these activities, scholar, confidant and judge, went to the service of reform.

But if reform was the warp, surely restraint became the woof of the fabric of his judicial career, for, while any calling has its attendant restraints, he clearly saw and firmly asserted that the judicial place imposes a very special set of proprieties on its holder. Whether his understanding of judicial restraint subverted his judicial capacity, as was the case with Holmes,⁸ or purified it, is the determining question in understanding and appreciating his judicial statesmanship. Whatever he may have thought about how Franklin Roosevelt ought to deal with the Russians, or with the depression, or with the war, it is what he thought about justice and about the United States Constitution and about the place of the Supreme Court under that Constitution that formed his highest acts as a statesman, his judicial decisions and the opinions supporting them.

Anthony Lewis rightly corrected the Economist for referring to Frankfutter as a “Democrat”⁹ but, while Frankfurter was never a party man, surely he was a New Dealer. He believed that it was both expedient and in accord with the Constitution for the national government to take vigorous action forming and regulating the economy of the nation. The country turned to that task early in the New Deal, of course, and the crucial cases wherein the Supreme Court showed its agreement with the president and the Congress in the view that it was lawful and prudent for the nation to do so came down before Frankfurter joined the Court.¹⁰ But there were nonetheless a great many opportunities for Frankfurter to shape the law on that question. His very first opinion was the opinion for the Court in Hale v. Bimco Trading Co.,¹¹ a case testing a Florida tax on imported cement, and his last opinion was a dissent in National Labor Relations Board v. Walton Mfg. Co.,¹² a case raising questions as to the proper mode of review by the courts of NLRB orders. Thus, his judicial career begins and ends with questions engendered by the Commerce Clause.

To say that a judge has opportunities to “shape the law” inevitably and immediately raises the question as to what it is that shapes the understanding of the judge. What is the pattern to which he looks when he “shapes” the law? Now, every Supreme Court justice has always contended that the Constitution was his pattern. But the Constitution is brief, and comprehensive and “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs”¹³ and so requires interpretation. So, what passes for an answer must itself be treated as a problem. Confronted with that problem directly, Frankfurter told us in the Barnette case:

In the past, this Court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called the “spirit of the Constitution.” Such undefined destructive power was not conferred on this Court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because to us as individuals it seems opposed to the “’plan and purpose” of the Constitution. That is too tempting a basis for finding in one’s personal views the purposes of the Founders.¹⁴

Tempting it surely is, but can one safely deny plan and purpose or spirit to the Constitution in order to be led not into temptation? What could Frankfurter mean when he says “the letter kiUeth”¹⁵ unless he means that the spirit giveth life? It would make no sense to suggest that Frankfurter, dealing with the Constitution in the one case and with a statute in the other, meant to say that constitutions are to be construed narrowly and statutes, subject to amendment, correction and supplementation from hour to hour by the very legislative power which enacted them, should be construed generously. Perhaps he meant in bath cases to set the legislative power free to work its will, for, in the Barnette case, it was restraint ofthat power which he said was not to be found in the “spirit” or “plan and purpose” of the Constitution. But his formulation is none the less problematic. Hamilton, in showing that judicial review was to be expected in the scheme established by the Constitution, had argued that limitations, even very narrow and precise limitations, such for instance as the one that the legislature shall pass no ex post facto laws, “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”¹⁶

Frankfurter’s formulation is seen to be even more problematic when it is noticed that he does not hesitate to rely on his own view of the “spirit” or “plan” of the Constitution, In San Diego Union v. Garmon, raising the question as to whether a congressional establishment of certain regulations of labor relations had pre-empted action by the states, he said that “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern” of the congressional act.¹⁷ What federal system? Why promote democracy? Are either of these things called for by the Constitution? Maybe so, but if ’so, only by its “spirit” or “plan.” Can it have escaped Frankfurter’s notice that the Constitution never once uses the word “federal”? Ne...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Preface to the Transaction Edition
• Preface to the First Edition
• Preface to the Second Edition
• Morton J. Frisch
• Introduction
• George Washington
• Thomas Jefferson
• Alexander Hamilton
• The Constitutional Convention: Toward a More Perfect Union
• The Federalist
• John Marshall
• Joseph Story
• John C. Calhoun
• Roger Taney
• Abraham Lincoln
• Frederick Douglass
• Elihu Root
• Woodrow Wilson
• Oliver Wendell Holmes, JR.
• Franklin Delano Roosevelt
• Felix Frankfurter
• Dean Acheson
• CONTRIBUTORS