The Conflicted Constitution: The Textual Absolutism of Justices Black and Thomas Versus the Balanced Restraint of Justices Frankfurter and Breyer

Abstract:     
Justices Hugo Black and Felix Frankfurter advocated two distinct methods of constitutional interpretation. Whereas the former treated amendments as absolute protections of individual rights, the latter took a more balanced approach, generally favoring state over individual interests. These approaches can be seen on today’s Supreme Court: Black’s closest comparison is Clarence Thomas, who treats constitutional language as absolute. Frankfurter’s approach is reflected in the jurisprudence of Stephen Breyer, who often weighs the different interests before him.

This article begins by tracing Black and Frankfurter’s competing judicial philosophies. Nowhere were Black and Frankfurter’s competing philosophies more pronounced than in cases concerning the First Amendment’s free speech clause and the Fourteenth Amendment’s guarantee of due process. I then outline the parallel philosophies of Clarence Thomas and Stephen Breyer. I conclude by highlighting some substantive difference between the two generations of Justices, and the advantages and disadvantages of their conflicting approaches to constitutional law.

Number of Pages in PDF File: 24

Keywords: Constitutional Law, jurisprudence, judicial restraint

Accepted Paper Series