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.