Faith in the People

THE SUPREME COURT

"There is a tendency now among some to look to the judiciary to make all major policy decisions of our society under the guise of determining constitutionality. The belief is that the Supreme Court will reach a faster and more desirable resolution of our "problems than the legislative or executive branches of the Government. I would much prefer to put my faith in the people and their elected representatives to choose the proper policies, leaving to the courts questions of constitutional in terpretation and enforcement."

Thus last week spoke Justice Hugo Lafayette Black, 82, long considered a leading member of the Supreme Court's activist wing. In a series of three lectures at Columbia University, he took the unusual step of publicly out lining his philosophy. Too often, he said, judges forget that they have taken "an oath to support the Constitution as it is, not as they think it should be."

Capricious Phrases. The due process clauses of the Fifth and 14th Amend ments have been particularly mangled, he feels. In the past, a majority of the Court has often used due process, said Black, to "strike down laws which Justices found to be 'unreasonable,' 'arbitrary,' 'capricious,' or 'contrary to a fundamental sense of civilized justice.' What, for example, do the phrases 'shock the conscience' or 'offend the community's sense of fair play and decency' mean? I submit that these expressions impose no limitations or restrictions whatever on judges, but leave them completely free to decide constitutional questions on the basis of their own policy judgments."

The Constitution does not intend this, said Black, and similarly, "I am vigorously opposed to efforts to extend the First Amendment's freedom of speech beyoffd speech, freedom of press beyond press and freedom of religion beyond religious beliefs."

Accurate reading of the Constitution does not permit such indulgences. Black has refused to stand against electronic eavesdropping because he concludes that since the framers of the Constitution said nothing about privacy, they did not mean to protect it. "Even though I like my privacy as well as the next person, I am nevertheless compelled to admit that the states have a right to invade it unless prohibited by some specific constitutional provision."

Fear of Rewriting. Normally reluctant to speak out in public, Black seized the occasion of Columbia's Carpentier Lectures to set to rest "current comments that I have changed my views, with the implication that I am now deciding constitutional issues differently." Undeniably, Black is--more than previously--siding on occasion against individuals claiming constitutional protection. But, he said, "I think I can say categorically that I have not changed my basic constitutional philosophy--at least not in the past 40 years."

He added that he is committed, as always, to interpretation of the Constitution based on what is written in it and on what the framers intended. But a judge who one day reaches a welcome view for the wrong reasons may on another hold an unwelcome position. "I strongly believe that the public welfare demands that constitutional cases must be decided according to the terms of our Constitution itself and not according to judges' views of fairness, reasonableness or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."

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