THE CONSTITUTION: That Delicate Balance by Fred W. & Martha J. H. Elliott Friendly

THE CONSTITUTION: That Delicate Balance

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Published to coincide with a 13-part PBS series hosted by Friendly: stories of 16 key Supreme Court cases illustrating the Court's ticklish balancing act between individual rights and social needs--an occasionally clumsy act that, in the authors' admiring eyes, keeps the Constitution a living document. As presented, the cases--on privacy rights, abortion, cruel and unusual punishment, the lawful collection of evidence, press freedom, states rights, and other matters--are engaging on a journalistic level; but they are also defused by the authors' reluctance to engage in constitutional interpretation. Perhaps because of Friendly's own CBS News background, this reluctance reaches its apogee in the discussion of freedom of press. After a chapter on a decision (Near v. Minnesota) upholding the right to publish a 1920s Minneapolis scandal sheet that did not exclude the possibility of some prior restraint, Friendly and Elliott turn to a series of freedom-of-press incidents from the Bay of Pigs through the Pentagon Papers to Grenada. Under the minutiae of who telephoned whom, the main elements are well known. The New York Times, partly on its own and partly from White House pressure (JFK's or not, the minutiae don't include), squelched its scoop on the upcoming, CIA-run secret invasion of Cuba. (Times people were concerned with the blood they might have on their hands if the invasion were disclosed beforehand; they don't seem to have worried about the pros and cons of the invasion itself.) In the interests of national security, the Times and the Washington Post also held off on stories about the Cuban missile crisis. Then, increasingly alienated from government policies and still uneasy about the Bay of Pigs episode, the Times and the Post went ahead with excerpts from the leaked Pentagon Papers, successfully avoiding government efforts to exercise prior restraint. Friendly and Elliott re-record all this so evenly everyone's motives appear unquestionable. When they get to Grenada, where the government simply cut the press off at the source, they limply assert that maybe unrestricted access to news in the electronic era is a dubious idea on national security grounds For layfolk, they devise a theoretical case involving a secret operation to destroy a threatening Soviet underground reactor in the Western Hemisphere; if you were a correspondent, would you sign a secrecy pledge to be allowed to accompany the mission (and attest to the reactor's existence)? Friendly and Elliott come out clearly for ""balance,"" and that's the tenor throughout--which makes for agreeable reading but doesn't encourage deep reflection.

Pub Date: Sept. 1st, 1984
Publisher: Random House