Felix Frankfurter's "The Public and its Government"

The world of the paperback the University of Chicago invites you to join

us for this series of 15 minute programs dedicated to the discussion of literary topics

and the review of significant paper bound books each weekly program will bring to the

microphone a different author authority or educator with his particular viewpoint towards the topic for

discussion. The book selected for today's discussion is the

public and its government by Felix Frankfurter. Our guest reviewer is Philip

Courland professor of law at the University of Chicago. Here is your

discussion host from the University of Chicago Robert C. Albrecht.

Justice Frankfurter opens his book the public and its government with this quotation from

Perry please. We differ from other states in regarding the man who holds aloof

from public life not as quiet but as useless. We decided to bait carefully

and person all matters of policy holding not the words and deeds go we'll together. But the

acts are foredoomed to failure when undertaken undiscussed.

This quotation from Perry please rightfully belong at the opening to a book on the

public and government at the opening of the book but I think it

is a model for Felix Frankfurter it

certainly contains the essence of what he was. But as a patient public

life thought before action. I think of the themes that he

most heartily.

First thing that struck me first was the title. It might have been the public

and describe the relationships between the two. I think it was important that he chose the

public in it because it is.

Testimony I think to his belief in democracy he did believe that the government

belonged to the people.

One of his reasons for writing the book was that he felt that there was at least a

measure of distrust between the public and its government. Did you feel this.

Well I don't have any doubt that when he wrote the book which was based on a series of

lectures he gave that yeah what he was trying to overcome

was what he thought was a dying perhaps and the notion that should be killed rather than a dying

notion that the government had no business carrying on doing anything except acting

as a referee among private interests.

Does this do you think this new is still commonly held.

I think it's disappeared to a large extent I think my

memories of that era are not quite clear. There was more of a problem.

I'm not sure that what we would regard as commonplace was regarded

as possibly true by a very large number of influential people in the

community. I thinking of a statement of the book The government is no longer

merely to keep the ring. To be a policeman to secure the observance of elementary decency.

It is now looked upon as one of the energies of civilization that is being drawn upon for all the

great ends assert it. I think right through the time of

the Roosevelt court packing plan a lot of people would regard this as

socialistic heresy.

And today of course it seems that one people accept another functional

government as its proper sphere.

Is it the same function that got the same function the frankfurter envisioned in

1030 vision that

he had in 1930 I think is probably best expressed in

the New Deal. What we think the New Deal stood for although actually I

suppose it really had a single philosophy but that there

are problems which are not solved of individuals or by local

governments of states that it was the function but the

obligation of the national government to take. But I think he had a

countervailing thesis which you expressed in this value to the extent that the

problem is a local. The proper area for resolution is

at the local level at the National.

Did Frankfurter during particularly during the thirties seem to stand for this position on the

court.

Well you didn't get to the court in time I

think what you have to look to when you ask what he did

on the court is his notion that a.

It is not the function of the judiciary to express the

function of a legislator or a commentator on legislation to express what he was talking about

here is what legislatures should do what executive the executive

branches should do. So far as he was concerned the court was not a

formulator power. It was a protector against imposition

on the rights of individuals. But it was not its function to undertake

the leadership and the creation of national policy.

And so as a judge I think you would say that it was none of his business to

put into effect the various suggestions that he makes here just as he said it

was none of his business to interfere with those plans when the legislature

didn't like them.

And one of the things which he seems to emphasize a

chapter of the book is the function of the Supreme Court to

review the legislature and the state. Bodies

still seem that this is one of their most important functions of the Supreme Court.

I don't think that community question about what's happened between the time he was talking

here and the problems that the court now faces and did face during

most of the time that he was a member of the court is the difference

between the Question of the power of state governments to

control economic activity which the court was limiting such an

extent that both the national and the state governments as a matter of fact became powerless to deal

with an economic catastrophe like the depression. But what we have now

is a problem of limitations on state power in the areas that affect

individual freedoms and liberties as distinguished from. Although I

don't think any sharp line can be drawn but a distinguished prophet. Well the concern

with that is today in the court as a meaning of due process of law with relation

to life and liberty and what they were concerned with at this time was primarily due

process with relation to property Frankfurter was

one of those judges who did not have a great deal of faith in the

utilization of the Due Process Clause to effectuate appropriate

ends of government. This is part in part due to is there's a real feeling about

the undemocratic nature of a court its lack of political responsibility

in part due to the failure to find any guidance in the words due

process and in part to the notion that to the extent that you read

strict concepts into the due process clause you limited the capacity

both of the states and the national government to experiment in the resolution of problems.

Frankfurter it to one point in this book mentions the problem

I suppose in his college and the divided court. This does not seem to

bother him.

This time you never barring one Islamic court

having control of it once it got to the court I suppose having contributed to the great number of

dissenting opinions. It would be hard for him to complain that this was going on but he's

spoke frequently about public and private ques and essentially what he asked

anybody who raised the price of a Why does the court

ask the question of what hard problems are there and which there are two points

of view and the fact of the matter is that the court is not a device

of the newspapers would reveal because the court divides on the hardest problems

of the Getz which also happen to be the problems that make the newspapers the

majority of decisions are unanimous decisions. They were them.

That is before Frank put it on the court they were while he was on the court and they have been since he left

because he was a great believer in the obligation of the justice to express his own

views. Where they differed from that of the majority.

I think in part this derives from the fact that he saw the individual

expression of opinions by Justice Brandeis and eventually become

dominant. I expect he would have shouted the thing got whatever might have happened

if they had remained silent and not stated that.

Did Frank for any time seem to to question the

position of the court in a democratic society or did he always see it as a

real integral part of a democratic government.

I think you have to divide the court's function into several parts. I think what you're

talking about and the public image is concerned with the power of judicial review.

There can be no question of the desirability of the necessity of the court

for many other functions such as the interpretation of

legislation the supervision of the administration of justice in the

courts in the area of public review of judicial review.

I think Frank believed that it should be accessed only under the most

extraordinary circumstances. I think he had little

doubts about joining in the school segregation cases. On the other

I think he would have given a lot more leeway to state legislatures as well as in the

legislatures and most of his brother and have come to believe as appropriate.

One of the old questions. That one always thinks of I suppose

it's a lame Halas things that regard the court as a narrow and broad

interpretation of the Constitution. I suppose there's that this is really a dead question his need

for members of the court.

No they continue to argue about it. I think it is meaningless for

our purposes and always has been meaningless there is no doubt that it is a constitution and as a

constitution is not to be construed as literally as a statue. On the other hand it

is also true that there is some history and content to

the Constitution which means that the justices aren't free to write anything they

please as constitutional law. There's vacillation between the

two poles and sometimes you call it tends toward one and

other times tends toward the other and sometimes it will depend on the subject as before

and as to whether you have a strict constructionist or a broad constructionist with

Frankfurter usually.

Could he usually be denominated a broad constructionist.

Not in modern terms. He was considered

a more limited constructionist if you

think of the Constitution as being less of a restraint through

his government action than it was in the US.

He as I think we've indicated already has faith in democracy was

such that he had a belief that except in these extraordinary circumstances the

will of the people spoken through their legislature had to be done.

And yet he also said that the the court and the Constitution serve

also as a kind of protectors of the of the people

protected primarily of minorities and of individuals.

But even in the area of individual freedoms here and the reputation among.

Liberals close quote as a as a reactionary because he had hoped for reform

through the at the local level rather than attempt to impose reform from above.

He was not a great believer in edict from the court was

going to reform individual view. And he believed that.

You had to convince an educator who was ultimately responsible

for the election of the officials rather than the officials themselves to accomplish

what should be accomplished.

He places great emphasis in his closing remarks in this book on the

function of educational institutions with regard to the

public good. Did he see this.

Well I did see this as a necessity for

proper relations between the public and government and he certainly

did.

I thought that first of all you needed a group with specialized

difficult problems that this group would cover could come

out of university training. But you also believe that it was necessary to

communicate to everybody who participated in

the electoral process. I think it would shock him to think that anybody was

going to sit back and say let somebody else decide who's going to win this election or

somebody else. There really is hands in politics.

You come back to those quotation from prickly at the

beginning but quiet and useless.

You know democracy.

The guest for today's discussion of the public and its government by Felix Frankfurter was

Philip Kurland professor of law at the University of Chicago. Your host for the world

of the paperback is Robert C. Albrecht assistant professor of English at the University of

Chicago. Next week John Hope Franklin a professor of history at the

University of Chicago will discuss a book that he edited three Negro

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