Reynolds v. Sims
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In his dissent in Reynolds v. Sims, 377 U.S. 533 (1964), Justice John Marshall Harlan wrote, "The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this nation will realize liberty for all its citizens. This Court, limited in its function in accordance with that premise, does not serve its high purpose when it exceeds it authority, even to satisfy justified impatience with the slow working of the political process."
In his lecture "The Nature of the Judicial Process," Justice Benjamin N. Cardozo said, "(The judge) fills the open spaces in the law. How far he can go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness that comes with years of habitude in the practice of an art." (The Legal and Regulatory Environment of Business, 11th edition, Corley et al., p. 22)
How would you characterize the legal philosophies of Justices Harlan and Cardozo? How do you think each would rule if he had to decide the so-called "partial birth abortion" issue?
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Reynolds v. Sims is analyzed.
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In his dissent in Reynolds v. Sims, 377 U.S. 533 (1964), Justice John
<br>
<br>Marshall Harlan wrote, "The Constitution is not a panacea for every blot
<br>
<br>upon the public welfare, nor should this Court, ordained as a judicial body,
<br>
<br>be thought of as a general haven for reform movements. The Constitution is
<br>
<br>an instrument of government, fundamental to which is the premise that in a
<br>
<br>diffusion of governmental authority lies the greatest promise that this nation
<br>
<br>will realize liberty for all its citizens. This Court, limited in its function in
<br>
<br>accordance with that premise, does not serve its high purpose when it
<br>
<br>exceeds it authority, even to satisfy justified impatience with the slow
<br>
<br>working of the political process."
<br>
<br>In his lecture "The Nature of the Judicial Process," Justice Benjamin N.
<br>
<br>Cardozo said, "(The judge) fills the open spaces in the law. How far he can
<br>
<br>go without traveling beyond the walls of the interstices cannot be staked out
<br>
<br>for him upon a chart. He must learn it for himself as he gains the sense of
<br>
<br>fitness that comes with years of habitude in the practice of an art." (The
<br>
<br>Legal and Regulatory Environment of Business, 11th edition, Corley et al.,
<br>
<br>p. 22)
<br>
<br>How would you characterize the legal philosophies of Justices Harlan and
<br>
<br>Cardozo? How do you think each would rule if he had to decide the
<br>
<br>so-called "partial birth abortion" issue?
<br>
<br>John Marshall Harlan is considered a judicial conservative; in keeping with
<br>
<br>this conception he advocates judicial restraint, rejects using the court as a
<br>
<br>haven for reform. It's less clear whether his advocacy of separation of
<br>
<br>powers/presence of federalism (the "diffusion of governmental authority")
<br>
<br>and his judgement that such diffusion is appropriate to "realize liberty for
<br>
<br>all its citizens." (A lot of so-called activist decisions are predicated upon ...
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