DECISION ACCORDING TO LAW: The 1979 Holmes Lectures

Slim volumes need not be slight, and these lectures by Yale Law School professor Black prove the point. Black's subject is the fundamental notion that courts decide cases ""according to law""; but precisely what, he asks, does that mean? Law is not an exact science, he first notes, but neither is it the product of judicial caprice; it is more like an art, and the issue is the rules for its practice. His argument begins with establishing that the Constitution gives Congress the power to determine the jurisdiction of the federal courts; and that it is a basic tenet of our democracy that the Congress' power supersedes that of the courts. This is of critical importance because Black sees the Congress, but more particularly the House, as the only institution in which the people are represented equally; the opinion of the Congress can therefore be taken as the prevailing opinion of the people. Taking up the question of judicial review, Black then goes on to establish that the federal courts have final authority over the states by virtue of the Ninth and Fourteenth Amendments. Given that, Black moves to the critical part of his argument: the Ninth Amendment affirms that those rights which are not explicitly enumerated in the Constitution reside with the people, and it is the role of the federal courts to determine what those rights are. Black takes the position that the courts, and most particularly the Supreme Court, can determine those rights by reasoning according to analogy from the other rights given in the Constitution. In this way, the Court must follow the commitment implied in the Constitution or indicated by the Congress in its actions. Black argues that this method of judicial review would secure the rights of women, minorities, aliens, and others in a more coherent way than suit under the First Amendment, the Fourteenth Amendment, or other provisions of the Constitution. For example, via the Ninth Amendment, the question would be, is the immunity of women from discriminatory laws an issue of national scope for which there are grounds to include it as one of the Ninth Amendment's rights? To this, Black answers that the fact that Congress, by a two-thirds vote, proposed the Equal Rights Amendment is sufficient evidence to suppose that it is. Black's reliance on the Ninth Amendment is in opposition to much recent judicial theory which relies on the Fourteenth Amendment's ""due process"" clause--and, in turn, on general principles, which he dismisses as ""vague."" To Black, judgment is the result of reasoning from commitment, and this is the only rigorous basis for ""decision according to law."" This short brief is turgid at times, but of very great importance.