Wednesday, June 21, 2017

Who are the Statesmen of Constitutional Law?

Richard Primus

Just noticing:

Chief Justice Roberts, in NFIB v. Sebelius, wrote that a (putative) rule of constitutional doctrine, namely the action/omission distinction in the context of the commerce power, is sensible in light of the fact that the Framers were “practical statesmen, not metaphysical philosophers.” 567 U.S. 519, 555.

Felix Frankfurter and Henry Hart, in what was essentially the Harvard Law Review Foreword for 1935, wrote that crucial elements of the Supreme Court’s practices in constitutional adjudication “express the sensibilities of statesmen, not the formulation of technicians.” See 49 Harv. L. Rev. 68, 94 (1935).

The two sources describe, more or less, the same virtue.  But they claim it for two different groups of people.  Because the statesmen Frankfurter and Hart were describing weren’t the Framers.  They were the Justices. 

Older Posts
Newer Posts