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Report No. 95

IV. The Issues in Constitutional Adjudication

3.16. Wide scope of questions-views of Cohen, Jackson and Frankfurter.-

A few words now about the nature of issues in constitutional adjudication. Morris Cohen has described these issues:-

"We cannot pretend that the Supreme Court is simply a court of law. Actually the issues before it generally depend on the determination of all sorts of facts and their consequences, and the values we are attaching to these consequences. These are questions of economics, politics and social policies which legal training cannot solve, unless law includes all the social knowledge."3

Speaking of the U.S. Supreme Court, Robert H. Jackson said, "nor can it (the Supreme Court of America) be regarded merely as another law court. The court's place in the constitution was determined by principles drawn from philosophy broader than mere law".4

Jackson also quoted the observations of Cardozo to the following effect: "It (the New York Court of Appeals) is a great common law court; its problems are lawyer's problems. But the Supreme Court is occupied chiefly with statutory construction-which no man can make interesting-and with politics" but Jackson added "of course, he (Cardozo) used politics in no sense of partisanship but in the sense of policy-making".5

Justice Frankfurter has also said-"Let us face the fact that five Justices of the Supreme Court are moulders of policy, rather than impersonal vehicles of revealed truth.

"People have been taught to believe that when the Supreme Court speaks, it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that is what the country needs most to understand."6

1. Chapter 5, infra.

2. Article 93, Constitution of the Federal Republic of Germany; see paras. 5.7 to 5.14, infra.

3. Morris Cohan Reason and Law, (1950), pp. 73-74.

4. Jackson The Supreme Court in the American System of Government, (1955), p. 2.

5. Jackson The Struggle for Judicial Supremacy, (1955), p. 54.

6. M. Freedman (Ed.) Roosevelt & Frankfurter: Their Correspondence, 1928-1945, (1967), p. 383.

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