Title

The Enduring Significance of Neutral Principles

Document Type

Article

Publication Date

1978

Abstract

Almost twenty years have passed since Herbert Wechsler delivered his Oliver Wendell Holmes lecture, Toward Neutral Principles of Constitutional Law.' Although no one piece fully conveys the richness and rigor of Professor Wechsler's conception of constitutional law and the role of the judiciary, 2 Neutral Principles sets out starkly, eloquently, and courageously some of his fundamental beliefs about constitutional decisionmaking. Shifts in jurisprudential fashion, as well as marked changes in constitutional doctrine and the composition of the Supreme Court, would make this an apt time to review what is almost certainly the most cited and most controversial discussion of constitutional issues since World War II, even if this were not an occasion to honor the incomparable contributions to American law and legal thought of its distinguished author. Although Neutral Principles bears Herbert Wechsler's unmistakable stamp, the lecture was also representative of what my colleague Louis Henkin has felicitously called the "inevitable reaction long overdue" 8 to the more radical versions of legal realism. Stressing the nonrational aspects of judicial decision, some realists had talked as if judicial decisions were essentially indistinguishable from other decisions, as if all one could reasonably hope for was a "mature" decisionmaker, as if the process of "reasoned justification" merely conceals the emperor's nakedness. 4 The realist portrayal of judges as essentially unrestrained conflicted disturbingly with democratic ideals which place legislative authority in popularly elected and politically responsible bodies. The portrayal was particularly troublesome in the context of constitutional law, given the direct clash between the judicial and political branches that constitutional invalidation involves and the then still vivid recollections of the misadventures of the 1930's Supreme Court. If judges in constitutional cases were really no different from legislators, one of two obvious lessons could be drawn: either Justice McReynolds and his brethren had made no fundamental mistakes about judicial authority and constitutional interpretation but had erred, if at all, only in their "legislative" wisdom, or judicial "legislators" should defer to elected legislators when the latter have expressed themselves. As Wechsler's predecessor in the Holmes lectureship, Judge Learned Hand had drawn the second lesson in the strongest terms, despairing not only of judicial development of open-ended phrases like "equal protection" and "due process of law," but also of judicial reliance on the first amendment and other relatively specific protections of individual rights in overriding decisions of the "political" branches. 5

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