Academics From The United States

"[T]he highest mission of the Supreme Court... is not to conserve judicial credibility, but in the Constitution's own phrase, "to form a more perfect Union" between right and rights within the charter's necessarily evolutionary design."

"[T]he courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible."

"The inescapable boundaries of societal context and consciousness argue... that [judges] must raise distinctive voices of principle."

"[T]hese models are not... mutually exclusive... discourse in any given period can... draw on... more than one model. ...Their main function is . ...[T]he models ...grow out of immersion in judicial decisions and lawyers' arguments ...[T]hey should be ...familiar themes ..."

"Those who know me moderately well will say that I am an assertive, hard-nosed pragmatist. I guess that judgment comes from the fact that I have a firm belief that the world can turn out to be better than it otherwise would be depending upon what individuals, particularly those who have luck on their side, do about it. What is more, I believe Americans, to quite a disproportionate degree, have luck on their side. It is my view that belief is the underlying and basic element of policy and action. First one must sort out matters of belief: who one is, in what relationship to whom, and what general direction in the realm of values is up and what direction is down. Then clear and rigorous logic, based upon a cold and unemotional assessment of the objective evidence concerning the relevant facts, and a careful analysis of the probable outcomes and probable material and moral costs of alternative courses of action, can help to get one from where one is to where one wants, and should want, to be."

"Early in life, as a witness to the limitless tragedy of World War I, I felt grow in me a determination to act, to work with others to influence the course of history and not supinely to accept what, in the absence of will and action, might be the world's fate. I came to Washington in the summer of 1940 with Jim Forrestal. I have been here, with short exceptions, ever since. For almost five decades I have played some role in the affairs of state, working with others to bend what otherwise might have been called the "inevitable trends of history." Some of the outcomes were wholly satisfactory, some marginally successful, and some were failures-but, on the whole, they were better, I think, than would otherwise have come about. On balance, we were fortunate in the opportunities for significant action the fortune of history opened up for us. It cannot be the good fortune of all mankind to live in Athens under the leadership of a Pericles, in Florence under the Medici, in the United States under a Washington or a Lincoln. Nor is it the usual fate of mankind to live under a Cleon, a Nero, a Stalin or a Hitler and thus have an unambiguous case for withdrawal from government or opposition to it. The usual case is a mixed one in which the task of the man of general wisdom and with a taste for politics is to manage, to deal with, to nudge the existing situation toward the best that is within the realm of the politically possible, to find such scope as he can for his courage, his fortitude, and his willingness to view facts with an open mind. When given half a chance, the combination of courage and an open mind can do wonders."

"[T]he question of whethor a particular amendment has... been lawfully ratified... would matter mightily with amendments as the three passed in the wake of the Civil War—the Thirteenth (abolishing slavery), the Fourteenth (defining citizenship and guaranteeing certain basic human rights to all persons in their dealings even with their own states), and the Fifteenth (abolishing racial qualifications for voting)—whose ratification by the legislatures of the former Confederate states was not exactly voluntary. Their acquiescence was secured by force, having been made a condition for their reentry into the Union from which they had attempted to secede."

"The visible Constitution... certainly doesn't answer very many of the persistent questions about what it means in any particular case and at any particular time. Indeed, the Constitution even tells us that it doesn't tell us: The Ninth Amemdment... expressly says, "The enumeration in the Constitution of certain rights shall not be construed to deny of disparage others retained by the people." In plain English there's more than meets the eye."

"[M]any constitutional scholars, political and moral philosophers, and social and political historians have described over the generations... the "unwritten Constitution," the subject of a classic study by William Bennett Munro published in 1930... "The Makers of the Unwritten Constitution,"... built on a still earlier and highly influential 1890 work by Professor Christopher G. Tiedeman... "The Unwritten Constitution of the United States." ...[S]cholarly work ...lay largely forgotten until ...resurrected in the writing of ...scholars in the 1970s. The focus... responses to the supposedly problematic legitimacy of having unelected and politically unaccountable judges resort to unenacted norms of this "unwritten Constitution" when holding duly promulgated laws and executive actions "unconstitutional.""

"So the written Constitution, the one we can see, fails to tell us just what's in it and what's not."

"This book must... touch... deep and difficult questions about birth and death... life and its inception... sexuality and gender, about distribution of power."

"[W]e may... find more common ground than we currently imagine."

"My interest is less in what's invisible "around" the Constitution than in what is invisible within it."

"For those whose minds are made up, this book offers a window into the way the "other side" sees... of why you have not been able to persuade opponents... insights into what they believe and... why."

"Since it was judges who had read abortion rights into the Constitution, abortion opponents believed, we needed judges who would read abortion back out... [S]ome urged a that would... have prohibited abortion or... at least have returned the question to each state's legislature, but... consensus and effort... proved elusive."

"This book challenges the inevitability of permanent conflict... and tries to lay the groundwork for moving on."

"Since it first came before the Supreme Court... abortion... has been about the Constitution. Whom does it protect? How do we decide..?"

"I mean to set aside... the complex superstructure of rules, doctrines, standards, legal tests, judicial precedents, legislative and executive practices, and the cultural and social traditions that together constitute what people call "constitutional law.""

"The political stage is... dominated by... well-rehearsed and deeply felt arguments, on either side... The debate is unending. ...[S]ingle-issue campaigning has ...distorted ...national elections. The losers will be the democratic process and the American people."

"This is... a book about morality. By offering several perspectives... some rooted in philosophy, some... in science and technology, we may come to see new ways to understand..."

"Who knows the names of the countless women who have died from painful and illegal abortions? What of the names of the countless babies who would have been born..."

"[T]he woman's right to decide for herself... is now subject to regulation, and possibly even prohibition, by our elected representatives. ...Even as the public agenda is stretched to address... questions as the , no issue threatens to divide us politically in... as powerful a way as the abortion issue..."

"The state shapes the society as much as the society shapes the state..."

"Governmental subsidies to "major" political parties... or failure of state governments to provide funds to compensate school districts lacking "rich" property tax bases, are government actions that affirm some aspects of the status quo as inevitable. Such... are at present constitutional... Unable to support a challenge to such... power, a truly procedural... theory seems doomed... for without such challenge government may well be able to shape the "will" of the governed in the image of those who govern, reducing consent and representation to all but empty ideals."

"This book is about a clash of absolutes, life against liberty. No right is more basic than the right to live. ...If infanticide is wrong, is the destruction of a fetus at eight months of , or at five, any different?"

"[I]t is puzzling that purely process-based approaches—designed to deny the need for, and legitimacy of... substantive theory—should... continue to find... articulate proponents and persist in attracting... adherents."

"[G]overnmental action that burdens groups effectively excluded from the process is constitutionally suspect. In its most sophisticated form, the resulting judicial scrutiny is seen as a way of invalidating governmental classifications and distributions that turn out to be motivated either by prejudiced hostility or by self-serving stereotypes."

"The question whether individuals may insist on being heard by rulemakers, for whom they already (directly or indirectly) voted, has bedeviled administrative law since the turn of the century."

"One cannot speak of "groups" as though society were objectively subdivided... Instead, people draw lines, attribute differences, as a way of ordering social justice—of deciding who may occupy what place, play what role, engage in what activity. Thus, in order to justify the role of chattel that blacks initially played in our society, we may have differentiated that role by describing it in terms of the most obvious distinguishing feature... equating race and role. This equation and thus "group" survived the Civil War and the Thirteenth Amendment... simply by reason of confusion or inertia, but because the role that society allowed remained partially unchanged; thus, the need to justify the role by differentiating it, by seeing not the role but the group—"inferior" blacks capable of nothing better...—persisted."

"The crux of any determination that a law unjustly discriminates against a group... is... that the law is part of a pattern that denies those subject to it a meaningful opportunity to realize their humanity. ...[S]uch an approach must look beyond process to identity and proclaim fundamental substantive rights—including substantive rights to participate on equal terms in the evolution of law and policy. ...[I]mportant aspects of constitutional law, including the determination of which groups deserve special protection, can be given content in no other way."

"[M]ost of us would readily concede that the framers of the 1787 Constitution adopted a federal system of government organization in order to, among other goals, help secure the institution of private property. When Madison, in his theory of faction, suggested that shifting the legislative responsibility for certain problems from the state to the national level could help assure that majorities would not trample on minority rights, the problems he had in mind were largely economic; the minority rights... were, for the most part, rights of property and contract."

"Nothing is more devastating than a life without liberty. A life in which one can be forced into parenthood is just such a life. Rape is among the most profound denials of liberty, and compelling a woman to bear a rapist's child is an assault on her humanity. How different is it to force her to remain pregnant... because efforts at birth control accidentally failed?"

"If forcing a woman to continue a pregnancy that will almost certainly kill her is impermissible, how different... to compel... a pregnancy that will probably shorten her life? Or... that will leave her life in shambles?"

"[J]ust as I am not writing for those who feel confident that canons of appropriate constitutional construction may be convincingly derived from some neutral source, so I am also not writing for those who have convinced themselves that "anything goes" as long as it helps end what they see as injustice; that constitutional law is only a legitimating mask for what those in power can get away with; or that it is only a tame language in which those that would otherwise foment violent revolution can couch their demands in forms the regime might accept without losing face."

"[A]lthough the effort was finally rejected by the Senate, the House was sufficiently persuaded by James Madison's fear of state and local oppression... to approve a constitutional amendment... that "no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases." ...[H]e came close to succeeding in 1789, and... it took a Civil War to make the difference."

"No one... persuaded that the categories of constitutional discourse, or of law generally, are readily rendered determinate and certain—and no one who believes that those categories are inherently empty, infinitely malleable, and ultimately corrupt—need read any further."

"I am... moved... by a sense of the ultimate futility of the quest for an Archimedean point outside ourselves from which the legitimacy of some form of judicial review or constitutional exegesis may be affirmed."

"Human will can be effective only at the margin of events. Freedom is not absolute either for individuals or for nations and much is determined by forces beyond their control, by events of the past, by accident, or by chance. At any given moment in time the margin of freedom left them may seem so small as to make it hardly worthwhile to exercise their will one way or the other. But the narrow margin of today becomes the foundation of the broader possibility for tomorrow. Over time the margin of freedom — the impact of will upon the possible — expands geometrically. The decision of today makes possible, or forecloses, ten decisions of tomorrow. The accumulated wisdom and experience of the past do not always give unambiguous precedents for decisions and actions at the relevant margin of freedom of the present. A new integration of general purpose with the concrete possibilities of the present may then become necessary. The most difficult issues of foreign policy and ethics arise when changes in degree, at some point, move so far as to become changes in kind, and dictate fundamental departures from past policy and direction."

"The problems and opportunities facing the present and coming generations are no less, perhaps greater, than those we faced. I hope that some of our experiences may provide insights useful to them. In any case I am grateful to have had the good luck to participate in the history of a fateful era."

"If there is little or no middle ground in the struggle for peace with justice, what resources of will and of national sacrifice are we entitled, or ethically called upon, to put into the effort to cause a system compatible with superior values to prevail? What risks are we entitled to take with the awful hazard of a nuclear war? What guidelines emerge from a comprehensive analysis of the full range of pertinent considerations? The concept of an ethical framework that has objective validity, over and beyond the values of the individual or societal groups and to which man can aspire to have some degree of understanding, seemed to me to be necessary for there to be a well-founded sense of direction to a foreign policy."

"[I]t is largely because I find all exercises of power by some over others—even with what passes for the latter's consent—are and must remain deeply problematic, that I find all legitimating theories not simply amusing in their pretensions but... as dangerous as they are convincing."

"There have been, from time to time, changes in the degree of destructiveness of weapons and of war. These changes, until recent decades, generally have been considered not to have invalidated the precepts of Western civilization and its antecedent cultures of the moral obligation to defend its freedoms, diversity, and cultural growth from tyranny, reaction, and cultural stagnation or death. But with the advent of the nuclear age, we are faced with a change in degree that threatens to become one of kind. The destructive nature of nuclear war dictates that we no longer regard war as merely the continuation of policy by other means. The deterrence of nuclear war, until such time as technology provides a more reliable and stable method, must, for the United States, be based upon the capability to prevail if deterrence should fail. But this must be combined with an effort to join with other nations in the creation of a just international order."

"In the first model, the centralized accumulation of power in any man or single group... meant tyranny; the division and separation of powers, both vertically (...federal, state and local...) and horizontally (...legislative, executive, and judicial...) meant liberty."

"That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and central tenet of American constitutionalism. ...[I]t was believed that personal freedom could be secured more effectively by decentralization than by express command."

"Judicial neutrality necessarily involves taking sides. ...[J]udicial restraint is but another form of judicial activism."

"[T]he framers had derived the conviction that human rights could best be preserved by inaction and indirection—shielded behind... deliberately fragmented centers of countervailing power, in a vision almost Newtonian..."

"If the legislature would punish, it must enlist... the other branches—the executive to prosecute, the judicial to try and convict."

"[W]hy do thoughtful judges and scholars continue to put forth the process-perfecting theories as though such theories could banish divisive controversies over substantive values from the realm of constitutional discourse by relegating those controversies to the unruly world of power?"

"Our main goal should be to establish a precedent for a new post-Cold War era, in which the community of nations, working through the United Nations and other organizations, can insure that would-be aggressors do not profit from invasion, coercion and force."

"One of the most dangerous forms of human error is forgetting what one is trying to achieve. In the gulf crisis, it is crucial that we look beyond our anger at Saddam and remind ourselves of precisely what U.S. interests are in the crisis and what we seek to accomplish."