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The Constitutional Impact on Public Policy: From the Warren Court to the Burger Court and Beyond
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11190 |
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Section : |
MODERN THOUGHT
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3 / 1986 |
7,414 Words |
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Philip B. Kurland
Philip B. Kurland is the William R. Kenan, Jr. Distinguished
Service Professor at the University of Chicago Law School.
This paper is reprinted by permission of The Washington
Institute for Values in Public Policy. |
To speak on the subject defined by the title of this talk raises a basic problem akin to that of the little boy who said that he knew how to spell "banana" but didn't know when to stop. I have some awareness of each of the elements contained in the subject of my assignment; the problem is to put them together to answer what is in fact the question presented: What was the constitutional impact on public policy of the three decades of decisions by the Warren and Burger Courts? The provisions of the Constitution and their origins have been the central focus of my work for about forty years. I know, perhaps, somewhat more about the crimes committed in the name of the Constitution by the Supreme Court, especially over the last thirty years. That has provided my livelihood along with some sadistic pleasure. However, this knowledge and the smattering about public policy cannot be brought together in such a way as to give a straightforward answer to what appears to be a straightforward question. I shall, therefore, offer some ruminations of each of the elements of the problem in the context suggested by the Constitution's bicentennial celebration.
First, note the point of view from which I speak. I am a lawyer who teaches, not a scholar whose discipline is law, not a practitioner, and certainly not a statesman. I learned my law in an old-fashioned school. My mentors, from whom I learned an attitude toward constitutional law more than its content, were Thomas Reed Powell, Learned Hand, and Felix Frankfurter, themselves students in the same way as Oliver Wendell Holmes--the judge, not the autocrat of the breakfast table.
Paul Freund once began a lecture on Mr. Justice Brandeis in this
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