Robert H. Jackson: Constitution

“The result is that constitutional precedents are accepted only at their current valuation and have a mortality rate almost as high as their authors.”

Robert H. Jackson

Source: "The Task of Maintaining Our Liberties: The Role of the Judiciary" (1953), P. 962
Context: For over a century it has been the settled doctrine of the Supreme Court that the principle of stare decisis has only limited application in constitutional cases. It might be thought that if any law is to be stabilized by a court decision it logically should be the most fundamental of all law -- that of the Constitution. But the years brought about a doctrine that such decisions must be tentative and subject to judicial cancellation if experience fails to verify them. The result is that constitutional precedents are accepted only at their current valuation and have a mortality rate almost as high as their authors.

“The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.”

Robert H. Jackson

American Communications Association v. Douds, 339 U.S. 382, 442-43 (1950)
Judicial opinions
Context: The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.

Error , Thinking

“But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.”

Robert H. Jackson

Judicial opinions, Korematsu v. United States (1944)

Law , Thinking , Time

“This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

Robert H. Jackson

Douglas v. Jeannette, 319 U.S. 157, 181 (1943)
Judicial opinions

Law , Way

“Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution.”

Robert H. Jackson

American Communications Association v. Douds, 339 U.S. 382, 439 (1950)
Judicial opinions

“No one will question that this power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decision to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed.”

Robert H. Jackson

On the "war power"; Woods v. Cloyd W. Miller Co., 333 U.S. 138, 146 (1948) (concurring)
Judicial opinions

Question , Decision , Passion , Time

“If we concede to the State power and wisdom to single out "duly constituted religious" bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those "duly constituted." We start down a rough road when we begin to mix compulsory public education with compulsory godliness.”

Robert H. Jackson

343 U.S. 325
Judicial opinions, Zorach v. Clauson (1952)

Wisdom , Education , Faith

“Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.”

Robert H. Jackson

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (concurring)
Judicial opinions

War , Country

“Of course, such judicial misconstruction theoretically can be cured by constitutional amendment. But the period of gestation of a constitutional amendment, or of any law reform, is reckoned in decades usually; in years, at least. And, after all, as the Court itself asserted in overruling the minimum-wage cases, it may not be the Constitution that was at fault.”

Robert H. Jackson

Source: The Struggle for Judicial Supremacy: A Study in Crisis in American Power Politics (1941), P. 297

Law

“Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here, he is not law-abiding and well-disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”

Robert H. Jackson

Judicial opinions, Korematsu v. United States (1944)

Life , Law , Parent , Country

“While the Declaration was directed against an excess of authority, the Constitution was directed against anarchy.”

Robert H. Jackson

Source: The Struggle for Judicial Supremacy: A Study in Crisis in American Power Politics (1941), P. 8

“I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.”

Robert H. Jackson

78 U.S. 92.
Judicial opinions, United States v. Ballard (1944)

Truth , Question

“The chief wrong which false prophets do to their following is not financial… But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy, and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”

Robert H. Jackson

The bolded section is often incorrectly reported as "The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish".
78 U.S. 94-95
Judicial opinions, United States v. Ballard (1944)

Money , Hunger , Truth , Religion

“My philosophy has been and continues to be that [the Court] cannot and should not try to seize the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construction. While the line to be drawn between interpretation and legislation is difficult, and numerous dissents turn upon it, there is a limit beyond which the Court incurs the just charge of trying to supersede the law-making branches. Every Justice has been accused of legislating and every one has joined in that accusation of others. When the Court has gone too far, it has provoked reactions which have set back the cause it is designed to advance and has sometimes called down upon itself severe rebuke.”

Robert H. Jackson

The Supreme Court in the American System of Government (1955), p. 79

Justice , Law

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Robert H. Jackson

319 U.S. 642
Judicial opinions, West Virginia State Board of Education v. Barnette (1943)

Faith , Religion , Star

“[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom[…] This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse.”

Robert H. Jackson

Dissenting in Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947)
Judicial opinions

Life , Religion , Business , Support