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The Antagonists.

The Antagonists This is an absorbing and illuminating account of the intersecting lives of two giants of American law, Felix Frankfurter and Hugo Black. They were together on some of the most important decisions of their era--Brown v. Board of Education, where both were on the right side, and wartime relocation cases, where both were wrong. They split on crucial First Amendment issues during the forties and fifties. On these, Black was on the side of the angels, while Frankfurter committed error after error that will forever blight his otherwise distinguished record.

Many of the cases about which they disagreed involved communism in America. It wasn't that Frankfurter overestimated the Red Peril. He accurately described communist influence in this country as "puny." But he was convinced that if Congress found otherwise, the Court should defer to the wisdom of the legislature. There seems little doubt that Frankfurter was influenced in this view by his experience as an unofficial adviser to FDR in the early days of the New Deal when the Court was striking down measure after measure that Congress had enacted to try to rescue the country from the grip of the Depression. Looking back on those days, Frankfurter said to Richard Goodwin, who was one of his clerks: "I was appointed when this Court almost wrecked the country and itself by trying to substitute its economic views for those of the president and Congress. I'm not going to impose my views about communism on the rest of the country."

This view led Frankfurter to join six of his fellow justices in upholding the Smith Act, which made it a crime to teach communist doctrine (Black and William O. Douglas dissented). Congress, after all, had passed the Smith Act, however stupid and evil it might be, so intellectual consistency demanded that Frankfurter go along.

As he also remarked to Goodwin:

"It is what we mean by democratic government. I don't believe that when the Founding Fathers wrote the Constitution they meant for basic questions of social and political policy to be decided by nine men in a secret conference on a Friday afternoon."

I think Frankfurter's democratic constitutional philosophy is absolutely right, except when the Bill of Rights is involved. Adopted by the Founding Fathers as a limit on the power of elected officials, it says these things you cannot do. And first among them is: "Congress shall make no law abridging the freedom of speech."

Surely, at minimum, this meant that the Congress should make no law limiting discussion of political ideas. We are a democracy except that no majority has the right to silence the voice of a minority or even of one individual.

There was one matter in which Black and Frankfurter agreed that I had forgotten but which is a great tribute to the humanity of both. They joined in opposing the execution of the Rosenbergs. I have always thought the Rosenbergs were guilty but that the death penalty was grotesquely wrong. Against this grave miscarriage of justice, these two great antagonists found common ground and fought the good fight together.

The Antagonists. James F. Simon. Simon & Shuster, $19.95.
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Author:Peters, Charles
Publication:Washington Monthly
Article Type:Book Review
Date:Oct 1, 1989
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