A Postscript for Charles Black: The Supreme Court and Race in the Progressive Era, 95 Yale Law Journal 1681 (1986)
Charles Black's work in constitutional law is,1 like the "slow politics of
the text"2 of the great Document itself, a statement of fundamental truths
about our condition and aspirations that often takes a while to set in. As
Harry Wellington has noted, few people had the sense to see The People
and the Court3 when published in 1960 for what it should with deliberate
speed have become: the dominant influence on my generation of constitu?
tional lawyers' efforts to see the problem of judicial review beyond the
shadows of the New Deal and the debacle of FDR's Court-Packing Plan.
The book has, along with related works such as Decision According to
Law4 constituted our era's main answer to the perennial anxiety that ju?
dicial review is a usurpation of democratic powers vested in the legislative
and executive branches. Black has also been our era's main exponent of
the related truth so hard for many to swallow: that courts have in fact and
are invited by the "democratic branches" to have large powers for social
change, powers that grow rather than dissipate with sensible, principled
and high-minded use. At the same time, Black's approach is rooted in the
insistence that judicial review is an exercise of law and not of fiat; no one
is more withering about those who would turn to courts for a fix anytime
the political processes prove deaf, slow or inconvenient. Indeed, Black's
view that constitutional law must be rooted in principle has been the basis
for one of his most important insights about judicial review, that its prime
importance lies not in its checking function but rather in its capacity to
give legitimacy to the exercise of governmental power.
Date of Authorship for this Version
constitutional law, judicial review, court
Schmidt, Benno C. Jr., "A Postscript for Charles Black: The Supreme Court and Race in the Progressive Era" (1986). Faculty Scholarship Series. Paper 4431.