Saving Us From Ourselves

Critics often complain that Supreme Court decisions have removed contentious issues from the political arena, where they can be debated and decided by citizens and their representatives.  That is, it appears, no accident.  In a 1969 article on the Harvard Law Review that was cited in several Supreme Court cases, Paul Freund argued that religious cases at least needed the finality of a court decision.

“Ordinarily I am disposed, in grey-area cases of constitutional law, to let political process function.  Even in dealing with basic guarantees I would eschew a single form of compliance and leave room for different methods of implementation, whether in pre-trial interrogation under the privilege against self-incrimination, or libel of public figures under freedom of the press, or exclusion of evidence under the search and seizure guarantee.  The religious guarantees, however, are of a different order.”

Because of the history of religious violence, these issues cannot be left to the political process, which might turn ugly.  “Although great issues of constitutional law are never settled until they are settled right, still as between open-ended, ongoing political warfare and such binding quality as judicial decisions possess, I would choose the latter in the field of God and Caesar and the public treasury.”