THE
OPEN
ECONOMY:
JUSTICE
FRANKFURTER
AND
THE
POSITION
OF
THE
JUDICIARY
ERNEST
J.
BROWNt
"1
do
not
think
the
United
States
would
cone
to
ans
end
if
we
lost
our
power
to
declare
an
Act
of
Congress
void.
I
do
think
the
Union
would
be
imperiled
if
we
could
not
make
that
declaration
as
to
the
laws
of the
several
States.
For
one
in
my
place
sees
how
often
a
local
policy
prevails
with those
who
arc
not
trained
to
national
views
and
how
often
action
is
taken
that
embodies
what
the
Commerce
Clause
was
meant
to
end."
-HoLmES,
Law
and
the
Court,
in
CoLLECrTED
LEGAL.
PAPERS
291,
295-96
(1920).
THAT
Justice
Frankfurter's
first
Supreme
Court
opinion
should
be
one
hold-
ing
a
state
statute
unconstitutional
seemed
at
the
time
an
amusing
irony,
easy
and
inevitable
though
the
Court's
unanimous
decision
appeared
to
be.'
That
subsequent
opinions
and
votes
indicated
a
large and
generalized
tolerance
of
state
legislation,
whatever
the
source
or
nature
of
the
challenge, seemed
entire-
ly
in
character
for one
who
had
often
invoked
the
classic
statements
of
James
Bradley
Thayer
or
Justice
Holmes and
urged
restraint
and
hesitance
as
the
appropriate
attitude
of
a
constitutional
judge.
2
That
in
later
years
Justice
Frankfurter
should
not
infrequently
find
merit
in
claims
of
conflict
between
state
legislation
and
the
commerce
clause,
even
while
he
maintained
a
limiting
view
of
the
proper
scope
of
judicial
activity,
3
has
to
some
seemed
paradox.
But
paradox
abounds,
for those
who seek
it,
in
the
ifistitutions
of American
constitutional
law.
That
a
government
democratic
in
base
and
representative
in
method should
have
what
are
thought
to
be
its
shaping
and
fundamental
decisions
made
by
the majority
of
a
small
group
of
men
appointed
for
life
is
paradox
enough.
That
the
questions
requiring those
decisions
should
be
pre-
sented in
the
haphazard
of
litigation,
either
wholly
private
or
private
in
instiga-
tion
or
defense,
and
by
lawyers
chosen
fortuitously
and often
without
reference
to
special
competence,
is
even
greater
paradox.
Paradox,
however,
is
only
seeming
contradiction.
If
it
presents
the inter-
secting
thrusts
of
ideas
each
of
which
enjoys
acceptance,
it
shares
that attribute
with
the
controversies
which
take
place
in every active
field
of
the
law,
and
perhaps
particularly
in
constitutional
law.
4
As
with those
controversies, resolu-
tProfessor
of
Law,
Harvard
Law
School.
1. Hale
v.
Bimco
Trading,
Inc.,
306
U.S.
375
(1939).
2.
E.g.,
Cloverleaf
Butter
Co.
v.
Patterson,
315
U.S.
148,
'177
(1942)
(dissenting
opinion)
;
Wisconsin
v. J.
C.
Penney
Co.,
311
U.S.
435
(1940)
;
Minersville
School
Dist.
v.
Gobitis,
310
U.S.
586
(1940);
Osborn
v.
Ozlin,
310
U.S.
53
(1940).
3.
Frankfurter,
John
Marshall
and
the
Judicial
Function,
69
HARv.
L.
REv.
217,
234-38
(1955),
reprinted
in
FRANKFURTE,
OF
LAW
AND
MEN
3,
24-30
(1956).
4.
Cf.
Frankfurter,
Some
Observations
on
the
Nature
of
the
Judicial Process
of
Su-
preme
Court Litigation,
98
PROCEEDINGS,
AMERIcAN
PHLosopsHicAIL
Socnr~
233,
239
(1954),
reprinted in
FRAxxFuRTER,
OF
LAW
AN
MEN
31, 43
(1,956).
THE
YALE
LAW
JOURNAL
tion
requires
accommodation
and
adjustment rather
than extrapolation
of
doc-
trine. The
paradoxes
involved
in
permitting
individuals,
without
official
sanc-
tion
and
often in
the
face
of
official
displeasure,
to
invoke the assurances
of
the
Constitution,
and
the
paradoxes
in
seeking,
within
institutions
largely
flexible.
a
measure
of
stability
of
structure
and values
through
review by
judges
whose
detachment
fulfills
their
function,
if
not
all
of
their
desirable
qualifications,
have,
as
might
have
been
expected,
produced
their
doctrinal
responses.
Under
such
heads
as
"standing,"
"ripeness,"
"case
or
controversy"
and "judicial
restraint,"
these
responses
have in
the
aggregate
presented
the
problem
of
the
judicial
function
which
has
been
the
overriding
concern
of
Justice
Frankfurter
both
on
and off
the
bench.
It
should
be
remembered,
however,
that
these
are
doctrines
of
adjustment
and
accommodation.
It
seems
unlikely
that
internal
rigidity
would
serve
their
purpose.
That
restraint
and
hesitance
to
interpose
a
constitutional
veto
should
in
many,
or
even
most,
instances
be
the
appropriate
judicial
attitude
does
not
necessarily
mean
that
the
occasions
should
be
undifferentiated.
James Bradley
Thayer
would
apparently
have
recognized
little
or
no difference,
whether
the
Court
was
considering
the
scope
of federal
powers
or a
state statute
challenged
under
the
commerce
clause
as
hostile
to
the
federal
system.5
Quite
apart
from
ab-
stract
ideas
of
the
coequality
of
the
several
branches
of
the
federal
government,
Herbert
Wechsler
has
demonstrated
why the
structure
of
our
government
should
make
judges
particularly
hesitant
to
hold
federal
legislation
beyond
the
scope
of
the
powers
granted
to the
central
government.
6
Without
attempting
present
decision
of
the
matter,
one
may
ask
whether
the
constitutional
negatives
upon
the
national,
government's
action
do
not
involve
different
considerations
and
hence
make
appropriate
somewhat
different
methods
and
standards
of
ad-
justment.
Justice Brandeis
urged
a
broad
tolerance
of
state
legislation against
a
claim
that
its substance
went
beyond
the
fluid
standards
of
that
process
which
is
"due";
he pointed
out
that,
within
the
isolated
chambers
of
the
states,
the
risks
from
legislation
proving
harmful
were limited,
while
the
lessons
of
benefit
or
of
harm
could
be
learned
universally.
7
Justice
Holmes must
inevitably
have
agreed
with
these
sentiments
had
he
still
been
a
member
of
the
Court.
8
Yet
almost
twenty
years
before,
in
the
words
which
introduce
this paper,
he
had
acknowledged
one
of
the
lessons
of
judicial
experience-when
the
limits
that
the
federal
system
imposes
upon
its
components
are
in
question,
when
the
centri-
fugal,
isolating
or
hostile
forces
of
localism
are
manifested
in
state
legislation,
the
interests
of
union
require
that
these factors
be recognized
and
the
judicial
negative
'be
interposed.
It
was
hardly
necessary
to
add what
some
of
the
Jus-
5.
Thayer,
The
Origin
and
Scope
of
the
American
Doctrine
of
Constitutional
Law,
7
HAgv.
L.
REv.
129
(1893);
2
THAYER,
CASES
ON
CONSTITUTIONAL
LAW
2190
(1895).
6.
Wechsler,
The
Political
Safeguards
of
Federalism:
The
Role
of
the
States
in
the
Composition
and
Selection
of
the
National
Government,
54
COLUm.
L.
Rv.
543,
559
(1954),
reprinted
in
FEDERALism
MATURE
AND
ENERGENT
97,
109
(Macmahon
ed.
1955).
7.
New
State
Ice
Co.
v.
Liebmann,
285
U.S.
262,
306-11
(1932)
(dissenting
opinion).
&
See
Truax
v.
Corrigan,
257
U.S.
312,
344
(1921)
(dissenting
opinion).
[Vol.
67:
219
1957]
JUSTICE
FRANKFURTER-THE
OPEN
ECONOMY
221
tice's
successors
have
not
always
recognized-the
Court
might
the
more
readily
intervene
against
state
legislation
under
a
commerce
clause
challenge,
since
it
would
at
most
make
what
it
believed
a
proper
allocation
of
power,
tentative
and
subject
to
reallocation
by
Congress;
a
negative
in
the
name
of
substantive
due
process
was,
however,
presumably
universal
and
final.
justice
Holmes's
observation
is
the
more
significant
since
he
was
not
notably
sensitive
to the
presence
of
an
excessive
localism.
9
In
this
area
at
least,
experience
must
have
found
him
a
somewhat
reluctant
pupil.
Twenty
years
and
more
ago,
the then
Professor
Frankfurter
wrote
of
"one
of
the
greatest
duties
of
a
judge,
the
duty
not
to
enlarge
his
authority."'
1
Acknowledging
the
preponderant
truth
of
this
observation,
one
may
speculate
that
the
Justice's
experience
in
the
intervening
years
has
contributed
to
the
definition
of
the
authority,
and
of
the duty.
At
the
same
time,
he went
on
to
say:
"For
a
court
to
hold
that
decision
does
not
belong
to
it,
is
merely
to
recog-
nize
that
a
problem
calls
for
the
exercise
of
initiative
and
experimentation
possessed
only
by
political
processes,
and
should
not
be
subjected
to
the
confined
procedure
of a
lawsuit
and
the
uncreative
resources
of judicial
review."
1
'
Written
in
a
discussion
of
state
legislation
and the
commerce
clause,
these
words
were
echoed
from
the
bench
in
a jointly
signed
opinion
only
a
few
years
later:
"Judicial
control
of
national
commerce-unlike
legislative
regulations-
must
from
inherent
limitations
of
the
judicial
process
treat
the
subject
by
the
hit-and-miss
method
of
deciding
single
local
controversies
upon
evi-
dence
and
information
limited
by
the
narrow
rules
of
litigation.
Spasmodic
and
unrelated
instances
of
litigation
cannot
afford
an
adequate
basis
for
the
creation
of
integrated
national
rules
which
alone
can
afford
that
full
pro-
tection
for
interstate
commerce
intended
by
the
Constitution.
We
would,
therefore,
leave
the
questions
raised
by
the
Arkansas
tax
for
consideration
of
Congress
....
,,12
These
are
brave
words.
But
no
Justice
since
Chief
Justice
Taney,
the joint
authors
included,
has
consistently
followed
their
implications.
For
Chancellor
Kent
of
New
York,
the
commerce
clause
afforded
no
judicially
discoverable
negative
upon
state statutes
other
than
conflicting
federal
legislation.
13
James
Bradley
Thayer
approved
this
position.
14
And
it
perhaps
approximated
the
opinion
of
Chief
Justice
Taney,
though
even
he
concurred
in
the
heavily
qualify-
9.
Cf.
Pennsylvania
v.
West
Virginia,
262
U.S.
553,
600
(1923)
(dissenting
opinion);
Western
Union Tel.
Co.
v. Kansas
ex
rel.
Coleman,
216
U.S.
1,
52
(1910)
(dissenting
opinion).
10.
FRANKFURTER,
THE
CommERcE
CLAUSE
UNDER
MARSHALL,
TANEY
AND
WAITE
80
(1937)
(hereinafter
cited
as
THE
CoMMERCE
CLAUSE).
11.
Id. at96.
12.
Black,
Frankfurter
and Douglas,
JJ.,
dissenting
in
McCarroll
v. Dixie
Grey-
hound
Lines,
Inc.,
309
U.S.
176,
188-89
(1940).
13.
See
Livingston
v.
Van
Ingen,
9
Johns.
R.
507,
572-80
(N.Y.
1812).
14.
2
THAYER,
CASES
ON
CoNsTiTUTIoNAL
LAW
2190
(1895).
THE
YALE
LAW
JOURNAL
ing
opinion
of
Justice
Curtis
in
Cooley
v.
Board
of
Port
Wardens.
1
If
Justice
Frankfurter
brought this
attitude
or
understanding
to the
Court, the
enlighten-
ment
afforded
by
judicial
experience
had
clearly
modified
it
by
the
time
of
his
concurring
opinion
in
Carter
v.
Virginia
1
6
and
his
concurrence
with the
major-
ity
opinion
in
Southern
Pac.
Co.
v.
Arizona.1
7
His
dissent
in
Capitol
Grey-
hound
Lines
v.
Brice
completes
the
change
in
emphasis
and
approach:
"Once
more
we
are
called
upon
to
subject
a
State
tax
on
interstate
motor
traffic
to
the scrutiny
which
the
Commerce
Clause
requires
so
that
inter-
state
commerce
may enjoy
freedom
from
State
taxation
outside
of
those
narrow
limits
within
which
States
are
free
to
burden
such
commerce."'
s
Had
the
views
of
Kent
and
Thayer
prevailed,
one
cannot
say
that
our
system
would
have
been
unworkable.
But
the very
mechanisms
of
our
government,
or
perhaps
the
lack
of
them,
would
have multiplied
frictions and
strains
which
we
have
been
spared.
These
mechanisms
do
not
give
to
Congress
any regularized
opportunity
or
duty
of
reviewing,
to
test
for
compatibility
with
the
federal
system,
state
statutes
even
in
their
skeletal
form
as
enacted,
much
less
as
fleshed
by application,
interpretation
and
administration.
Nor
has
Congress
been
so
idle
that
such
matters
could
be
assured
a
place
on
its
agenda
without
competition
from
other
business
which
might
often
be
deemed
more
pressing;
in
Justice
Jackson's
phrase,
the inertia
of
government
would
be
heavily
on
the
side
of
the
centrifugal
forces
of localism.'
9
Moreover,
as
Paul
Freund
has
suggested,
it
is
perhaps
as
well
that
members
of
Congress
have
not
been
given
the
additional
task
of
corralling,
by
quid
pro
quo
or
otherwise,
votes
and
support
on
behalf of
their
constituencies
for
or
against
specific
local
legislation.
20
Nor
do
the
largely
unsuccessful
attempts
of
judges
and commentators
to
formulate
rules
applicable
in
the
field
of
commerce
suggest
that
Congress
could
by
legislation in generalized
terms
give
in
advance
adequate
or
satisfactory
guidance
to
the
courts.
From
at
least
the
Cooley
decision
onward, the
Justices,
some
of
them
more
and
some
of
them
less
frequently,
have
found
occasions
where
the
implications
from
the
commerce clause
unaided
by
legislation have
seemed
to
them
to
war-
rant
interposing
a
negative
against state
legislation.
They
have
usually
been
the
result
of
an
appraisal
more
carefully
particularized
than
legislation
could
afford
and,
one
feels,
than
many opinions have
disclosed.
These
occasions
have
at
times
been
such
as
to
produce
helpful congressional
reaction."'
But
the
occa-
sions
are
not
to
be
found
specified
in
the
Constitution. Justices
may
talk,
often
with
vigor
and
not
infrequently
in
dissent,
of
judicial
legislation,
even
of
trying
statutes,
and
of
the
fact
that
the
Constitution
authorizes
Congress,
not
the
15.
53
U.S.
(12
How.)
318
(1851).
16.
321
U.S.
131,
139
(1944).
17.
325
U.S.
761
(1945).
18.
339
U.S.
542,
548
(1950).
19.
Duckvorth
v.
Arkansas,
314
U.S.
390,
400
(1941).
20.
Freund,
Unpiring
the
Federal
Systen,
54
COLUm.
L.
REv.
561
(1954),
reprinted
in
FEDEALISM
MATURE
AND
EMERGENT
159
(Macmahon
ed.
1955).
21.
See
FAIANu.A,
MR.
JUSTICE
MnmE
AND
THE
SUPREME
CouRT
314
(1939).
[Vol. 67
:219
1957]
JUSTICE
FRANKFURTER-THE
OPEN
ECONOMY
223
Court,
to
regulate
commerce.
But
this
is
not
the
line
of
division.
Division
arises in deciding
whether
the
Court.should
intervene
in
a particular
instance,
not whether
it
should
ever
do
so.
And
decision
has
found
few
generalized
guides. As
explicit
constitutional
and
legislative
guides
have
been
absent,
judi-
cially
made
or
discovered
formulations
have
been
inadequate.
Differences
in
appraisal, and
sharp
ones,
have
arisen.
But
on
the
whole,
these differences
seem
to
have
been
less
important
than
differences
in
perception.
Although
the
im-
pression
is
not
susceptible
of
proof,
the
decisions
seem
adequate, and
even
wise,
to
the
extent
that
the
particular
interests
at
stake,
long-range
as
well
as
short,
have
been
perceived
and
understood.
STATE
TAXATION
AND
THE
COMMERCE
CLAUSE:
A
CONCEPTUAL
PROBLEM
For
the
past
twenty-five
years,
it
has
been
the
frequently
and
officially
pro-
claimed policy
of
the
government
of
the
United States
that
barriers
to
inter-
national
trade
should
be
lowered,
and
that
efforts
to
that
end
should
be
constant
and
unremitting.
Not
without hesitation,
vacillation
and
some
backsliding,
it
has
followed
this
policy
by
legislation,
agreement
and
treaty.
With
some
measure
of
success,
it
has
urged the
benefits
of such
a
policy
upon
its friends
and
allies,
particularly
in
Western Europe.
There
has
been
interested, and perhaps
other,
opposition
on
occasion,
but
these
policies
have
received
a
remarkable
near-
unanimity
of
support
from
academic
and
detached
opinion in
the
United States.
Ouite
in
contrast
has
been
academic
legal
opinion
when
state
taxes
have
been challenged
in
the
Supreme
Court
as
barriers
to
trade
within
the United
States.
Whether
state taxes
were
challenged
under
the
rubric
of
jurisdiction
to
tax,
or
of
the
commerce
clause,
this
body
of
opinion
has
with remarkable
concert
supported
decisions
upholding
them
and
has
questioned
those
decisions
limiting
their
incidence.
2
2
This
divergence
of
opinion
may
be
explained
in several
ways.
It
may
be
that
the
challenges
to
internal taxes
have
been
largely
groundless,
weighed
on
any
rational
scale.
Some
apparently
believe
this,
but
it
seems
open
to
doubt, and
should
be
investigated.
Or
it
may
be
that
legal
commentators
would be
national-
ist
and
protectionist
if
they
were
considering
international
trade,
and
but
follow
the
same
bent
in
internal matters.
There
is
little
evidence
that
this
is
true,
and
it
seems
improbable.
Not
only
is
there
clear
awareness
of
our
historic
commitment
to
a
certain
degree of freedom
of
internal
trade
and
movement,
but
there
is
general
acceptance
of the
condemnation
of
state
statutes
which
are
clearly
and
22.
See,
e.g.,
Barrett, "Substance"
vs.
"Form"
in
the
Application
of the Commerce
Clause
to
State
Taxation,
101
U.
PA.
L.
REv.
740
(1953),
and
Barrett,
State
Taxation
of
Interstate
Commerce,
4
VAN'D.
L.
Rzv.
496
(1951)
;
Bittker,
The
Taxation
of
Out-of-State
Tangible
Property,
56
YALE
L.J.
640
(1947)
;
Dunham,
Gross Receipts
Taxes
on
Interstate
Transactions,
47
CoLUM.
L.
REv.
211
(1947);
Hartman,
Sales Taxation in
Interstate
Commerce,
9
VAND.
L.
REV.
138
(1956);
Hellerstein &
Hennefeld,
State
Taxation
in
a
National
Economy,
54
HARv.
L.
R~v.
949
(1941)
; Lockhart,
State
Tax
Barriers
to
Inter-
state
Trade,
53
HARv.
L.
REv.
1253
(1940),
and
Lockhart,
The
Sales
Tax
it
Interstate
Commerce,
52
HARv.
L.
REv. 617 (1939).