Neutral Principles
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Description
“Neutral principles” refers to a debate that took place throughout the late 1950s and the 1960s (and still resonates today) regarding the role of the judiciary in American democracy. Participants in the debate were, for the most part, law professors and judges, but their debate spilled into the broader society in the form of widely publicized speeches and articles published in the popular press. In essence, the debate was about whether there is a way to distinguish the judicial function from ordinary politics, and about the power of judges to strike down laws as unconstitutional. The neutral principles debate arose in the context of controversial decisions rendered by the Supreme Court under the leadership of Chief Justice EARL WARREN. In 1954, the Court decided BROWN V. BOARD OF EDUCATION, which ordered the DESEGREGATION of public schools. The Court was criticized, especially in the South, but academic commentary for a time was largely positive. Then, in 1957 and 1958, the Court decided a number of cases favoring the rights of Communists and communist-sympathizers, and there was a strong backlash against the Court in some quarters. It was against this backdrop that, in February 1958, Judge LEARNED HAND delivered his famous Holmes Lecture at the Harvard Law School. Hand was regarded as one of the preeminent judges in the country. His address surprised many people, for in it he was very critical of the Court. Hand attacked the idea of an activist judiciary, and even took the Court to task for its decision in Brown. The following year, Professor Herbert Wechsler delivered his Holmes Lecture, entitled Toward Neutral Principles of Constitutional Law, in which he responded to Hand. Wechsler supported the idea of JUDICIAL REVIEW, but insisted that when courts decide constitutional cases, the most important factor is that they reach their decision by applying “neutral principles” that “transcend the case at hand.” Although he said he personally favored the decision in Brown, Wechsler was unable to identify a neutral principle equally applicable to “a Negro or a segregationist” that made it clear that the Constitution's requirement of EQUAL PROTECTION OF THE LAWS required the desegregation of schools. According to Wechsler, Brown was about the FREEDOM OF ASSOCIATION, and he could not find a way to choose between “denying the association to those individuals who wish it or imposing it on those who would avoid it.”
Source Publication
Encyclopedia of the American Constitution
Source Editors/Authors
Leonard W. Levy, Kenneth L. Karst
Publication Date
2000
Edition
2
Volume Number
4
Recommended Citation
Friedman, Barry, "Neutral Principles" (2000). Faculty Chapters. 638.
https://gretchen.law.nyu.edu/fac-chapt/638
