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The Ultimate Touchstone Of Constitutionality Is The Constitution Itself, And Not What We Have Said About It.

-Felix Frankfurter

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The Ultimate Touchstone Of

Felix Frankfurter

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The Ultimate Touchstone Of Constitutionality Is The Constitution Itself, And Not What We Have Said About It.

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Libertarian Party

More From Felix Frankfurter

Is That Which Was Deemed To Be Of So Fundamental A Nature As To Be Written Into The Constitution To Endure For All Times To Be The Sport Of Shifting Winds Of Doctrine?

Freedom Of Expression Is The Well-spring Of Our Civilization... The History Of Civilization Is In Considerable Measure The Displacement Of Error Which Once Held Sway As Official Truth By Beliefs Which In Turn Have Yielded To Other Truths. Therefore The Liberty Of Man To Search For Truth Ought Not To Be Fettered, No Matter What Orthodoxies He May Challenge.

We Recognize That Stare Decisis Embodies An Important Social Policy That Represents An Element Of Continuity In Law And Is Rooted In The Psychological Need To Satisfy Reasonable Expectations.

Time And Experience Have Forcefully Taught That The Power To Inspect Dwelling Places, Either As A Matter Of Systematic Area-by-area Search Or, As Here, To Treat A Specific Problem, Is Of Indispensable Importance In The Maintenance Of Community Health; A Power That Would Be Greatly Hobbled By The Blanket Requirement Of The Safeguards Necessary For A Search Of Evidence Of Criminal Acts.

To Be Effective, Judicial Administration Must Not Be Leaden-footed.

Congress Is, After All, Not A Body Of Laymen Unfamiliar With The Commonplaces Of Our Law. This Legislation Was The Formulation Of The Two Judiciary Committees, All Of Whom Are Lawyers, And The Congress Is Predominately A Lawyers' Body.

Ours Is An Accusatorial, And Not An Inquisitorial, System - A System In Which The State Must Establish Guilt By Evidence Independently And Freely Secured, And May Not, By Coercion, Prove Its Charge Against An Accused Out Of His Own Mouth.

The Words Of The Constitution... Are So Unrestricted By Their Intrinsic Meaning Or By Their History Or By Tradition Or By Prior Decisions That They Leave The Individual Justice Free, If Indeed They Do Not Compel Him, To Gather Meaning Not From Reading The Constitution But From Reading Life.

Appeal Must Be To An Informed, Civically Militant Electorate.

Anybody Who Is Any Good Is Different From Anybody Else.

The Procrustean Bed Is Not A Symbol Of Equality. It Is No Less Inequality To Have Equality Among Unequals.

No Court Can Make Time Stand Still.

Freedom Of Speech And Of The Press Are Essential To The Enlightenment Of A Free People And In Restraining Those Who Wield Power.

Freedom Of Speech

A Phrase Begins Life As A Literary Expression; Its Felicity Leads To Its Lazy Repetition, And Repetition Soon Establishes It As A Legal Formula, Undiscriminatingly Used To Express Different And Sometimes Contradictory Ideas.

The State Insists That, By Thus Quarantining The General Reading Public Against Books Not Too Rugged For Grown Men And Women In Order To Shield Juvenile Innocence, It Is Exercising Its Power To Promote The General Welfare. Surely This Is To Burn The House To Roast The Pig...the Incidence Of This Enactment Is To Reduce The Adult Population Of Michigan To Reading Only What Is Fit For Children.

I Know Of No Title That I Deem More Honorable Than That Of Professor Of The Harvard Law School.

One Is Entitled To Say Without Qualification That The Correlation Between Prior Judicial Experience And Fitness For The Supreme Court Is Zero.

It Is A Wise Man Who Said That There Is No Greater Inequality Than The Equal Treatment Of Unequals.

To Some Lawyers, All Facts Are Created Equal.

It Is Important Not To Give The Appearance Of A Predisposed Mind. And It Is More Important Not To Let The Mind Become Predisposed.

The Line Must Follow Some Direction Of Policy, Whether Rooted In Logic Or Experience. Lines Should Not Be Drawn Simply For The Sake Of Drawing Lines.

The Dynamo Of Our Economic System Is Self-interest Which May Range From Mere Petty Greed To Admirable Types Of Self-expression.

There Is Torture Of Mind As Well As Body; The Will Is As Much Affected By Fear As By Force. And There Comes A Point Where This Court Should Not Be Ignorant As Judges Of What We Know As Men.

What Becomes Decisive To A Justice's Functioning On The Court In The Large Area Within Which His Individuality Moves Is His General Attitude Toward Law, The Habits Of The Mind That He Has Formed Or Is Capable Of Unforming, His Capacity For Detachment, His Temperament Or Training For Putting His Passion Behind His Judgment Instead Of In Front Of It. The Attitudes And Qualities Which I Am Groping To Characterize Are Ingredients Of What Compendiously Might Be Called Dominating Humility.

For The Highest Exercise Of Judicial Duty Is To Subordinate One's Personal Pulls And One's Private Views To The Law Of Which We Are All Guaradians - Those Impersonal Convictions That Made A Society A Civilized Community, And Not The Victims Of Personal Rule.

After All, Advocates, Including Advocates For States, Are Like Managers Of Pugilistic And Election Contestants In That They Have A Propensity For Claiming Everything.

Convictions Following The Admission Into Evidence Of Confessions Which Are Involuntary, I.e., The Product Of Coercion, Either Physical Or Psychological, Cannot Stand. This Is So Not Because Such Confessions Are Unlikely To Be True But Because The Methods Used To Extract Them Offend An Underlying Principle In The Enforcement Of Our Criminal Law: That Ours Is An Accusatorial, And Not An Inquisitorial, System - A System In Which The State Must Establish Guilt By Evidence Independently And Freely Secured, And May Not, By Coercion, Prove Its Charges Against An Accused Out Of His Own Mouth.

No Judge Writes On A Wholly Clean Slate.

I Don’t Like A Man To Be Too Efficient. He’s Likely To Be Not Human Enough.

Lincoln's Appeal To "the Better Angels Of Our Nature" Failed To Avert A Fratricidal War. But The Compassionate Wisdom Of Lincoln's First And Second Inaugurals Bequeathed To The Union, Cemented With Blood, A Moral Heritage Which, When Drawn Upon In Times Of Stress And Strife, Is Sure To Find Specific Ways And Means To Surmount Difficulties That May Appear To Be Insurmountable.

Ambiguity Lurks In Generality, And May Thus Become An Instrument Of Severity.

Of Compelling Consideration Is The Fact That Words Acquire Scope And Function From The History Of Events Which They Summarize.

Thirty Resolute Men In Your House Of Commons Could Save The World.

Freedom Of The Press Is Not An End In Itself But A Means To The End Of A Free Society.

Gratitude Is One Of The Least Articulate Of The Emotions, Especially When It Is Deep.

The Eternal Struggle In The Law Between Constancy And Change Is Largely A Struggle Between History And Reason, Between Past Reason And Present Needs.

There Is No Inevitability In History Except As Men Make It.

The History Of Liberty Has Largely Been The History Of The Observance Of Procedural Safeguards.

The Ultimate Touchstone Of Constitutionality Is The Constitution Itself, And Not What We Have Said About It.

Libertarian Party

If Nowhere Else, In The Relation Between Church And State, "good Fences Make Good Neighbors."

It Has Not Been Unknown That Judges Persist In Error To Avoid Giving The Appearance Of Weakness And Vacillation.

One Who Belongs To The Most Vilified And Persecuted Minority In History Is Not Likely To Be Insensible To The Freedoms Guaranteed By Our Constitution... But As Judges We Are Neither Jew Nor Gentile, Neither Catholic Nor Agnostic.

It Is A Fair Summary Of History To Say That The Safeguards Of Liberty Have Been Forged In Controversies Involving Not Very Nice People.

It Is Easy To Make Light Of Insistence On Scrupulous Regard For The Safeguards Of Civil Liberties When Invoked On Behalf Of The Unworthy. It Is Too Easy. History Bears Testimony That By Such Disregard Are The Rights Of Liberty Extinguished, Heedlessly At First, Then Stealthily, And Brazenly In The End.

Answers Are Not Obtained By Putting The Wrong Question And Thereby Begging The Real One.

The Real Rulers In Washington Are Invisible, And Exercise Power From Behind The Scenes.

Liberty Of Thought Soon Shrivels Without Freedom Of Expression. Nor Can Truth Be Pursued In An Atmosphere Hostile To The Endeavor Or Under Dangers Which Are Hazarded Only By Heroes.

Certainly The Affirmative Pursuit Of One's Convictions About The Ultimate Mystery Of The Universe And Man's Relation To It Is Placed Beyond The Reach Of Law. Government May Not Interfere With Organized Or Individual Expressions Of Belief Or Disbelief. Propagation Of Belief - Or Even Of Disbelief - In The Supernatural Is Protected, Whether In Church Or Chapel, Mosque Or Synagogue, Tabernacle Or Meeting-house.

Judicial Judgment Must Take Deep Account...of The Day Before Yesterday In Order That Yesterday May Not Paralyze Today.

The Ultimate Foundation Of A Free Society Is The Binding Tie Of Cohesive Sentiment.

Ultimately There Can Be No Freedom For Self Unless It Is Vouchsafed For Others; There Can Be No Security Where There Is Fear, And A Democratic Society Presupposes Confidence And Candor In The Relations Of Men With One Another And Eager Collaboration For The Larger Ends Of Life Instead Of The Pursuit Of Petty, Selfish Or Vainglorious Aims.

In Law Also The Emphasis Makes The Song.

A License Cannot Be Revoked Because A Man Is Red-headed Or Because He Was Divorced, Except For A Calling, If Such There Be, For Which Red-headedness Or An Unbroken Marriage May Have Some Rational Bearing. If A State Licensing Agency Lays Bare Its Arbitrary Action, Or If The State Law Explicitly Allows It To Act Arbitrarily, That Is Precisely The Kind Of State Action Which The Due Process Clause Forbids.

Future Lawyers Should Be More Aware That Law Is Not A System Of Abstract Logic, But The Web Of Arrangements, Rooted In History But Also In Hopes, For Promoting To A Maximum The Full Use Of A Nation's Resources And Talents.

Fragile As Reason Is And Limited As Law Is As The Institutionalised Medium Of Reason, That's All We Have Between Us And The Tyranny Of Mere Will And The Cruelty Of Unbridled, Undisciplined Feelings.

Anybody Can Decide A Question If Only A Single Principle Is In Controversy.

No Office In The Land Is More Important Than That Of Being A Citizen.

It Would Be A Narrow Conception Of Jurisprudence To Confine The Notion Of "laws" To What Is Found Written On The Statute Books, And To Disregard The Gloss Which Life Has Written Upon It.

The Indispensible Judicial Requisite Is Intellectual Humility.

Intellectual Humility

It Is Hostile To A Democratic System To Involve The Judiciary In The Politics Of The People.

It Would Be A Stultification Of The Responsibility Which The Course Of Constitutional History Has Cast Upon This Court To Hold That In Order To Convict A Man The Police Cannot Extract By Force What Is In His Mind, But Can Extract What Is In His Stomach.

Litigation Is The Pursuit Of Practical Ends, Not A Game Of Chess.

While It Is Not Always Profitable To Analogize "fact" To "fiction," La Fontaine's Fable Of The Crow, The Cheese, And The Fox Demonstrates That There Is A Substantial Difference Between Holding A Piece Of Cheese In The Beak And Putting It In The Stomach.

Morals Are Three-quarters Manners.

There Can Be No Security Where There Is Fear.

Wisdom Too Often Never Comes, And So One Ought Not To Reject It Merely Because It Comes Late.

If One Man Can Be Allowed To Determine For Himself What Is Law, Every Man Can. That Means First Chaos, Then Tyranny. Legal Process Is An Essential Part Of The Democratic Process.

I Came Into The World A Jew, And Although I Did Not Live My Life Entirely As A Jew, I Think It Is Fitting That I Should Leave As A Jew. I Don't Want To ... Turn My Back On A Great And Noble Heritage.

Old Age And Sickness Bring Out The Essential Characteristics Of A Man.

The Accretion Of Dangerous Power Does Not Come In A Day. It Does Come, However Slowly, From The Generative Force Of Unchecked Disregard Of The Restrictions That Fence In Even The Most Disinterested Assertion Of Authority.

Gratitude Is One Of The Least Articulate Of The Emotions, Especially When It Is Deep. I Can Express With Very Limited Adequacy The Passionate Devotion To This Land That Possesses Millions Of Our People, Born, Like Myself, Under Other Skies, For The Privilege That That This County Has Bestowed In Allowing Them To Partake Of Its Fellowship.

We Forget That The Most Successful Statesmen Have Been Professionals. Lincoln Was A Professional Politician.

Professionalism

A Court Which Yields To The Popular Will Thereby Licenses Itself To Practice Despotism, For There Can Be No Assurance That It Will Not, On Another Occasion, Indulge Its Own Will.

All Our Work, Our Whole Life Is A Matter Of Semantics, Because Words Are The Tools With Which We Work, The Material Out Of Which Laws Are Made, Out Of Which The Constitution Was Written. Everything Depends On Our Understanding Of Them.

The Mark Of A Truly Civilized Man Is Confidence In The Strength And Security Derived From The Inquiring Mind.

We Have Enjoyed So Much Freedom For So Long That We Are Perhaps In Danger Of Forgetting How Much Blood It Cost To Establish The Bill Of Rights.

If One Starts With The Assumption That, In The Absence Of Specific Congressional Authority, A Fixed Rule Of Law Precludes Contracting Officers From Providing In A Government Contract Terms Reasonably Calculated To Assure Its Performance Even Though There Be No Money Loss Through A Particular Default, There Is No Problem. But Answers Are Not Obtained By Putting The Wrong Question, And Thereby Begging The Real One.

Government Is Itself An Art, One Of The Subtlest Of The Arts. It Is Neither Business, Nor Technology, Nor Applied Science. It Is The Art Of Making Men Live Together In Peace And With Reasonable Happiness.

It Simply Is Not True That War Never Settles Anything.

The Most Constructive Way Of Resolving Conflicts Is To Avoid Them.

Without A Free Press There Can Be No Free Society. That Is Axiomatic. However, Freedom Of The Press Is Not An End In Itself But A Means To The End Of A Free Society. The Scope And Nature Of The Constitutional Guarantee Of The Freedom Of The Press Are To Be Viewed And Applied In That Light.

Democracy Is Always A Beckoning Goal, Not A Safe Harbor. For Freedom Is An Unremitting Endeavor, Never A Final Achievement.

In The First Place, Lawyers Better Remember They Are Human Beings, And A Human Being Who Hasn't His Periods Of Doubts And Distresses And Disappointments Must Be A Cabbage, Not A Human Being. That Is Number One.

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