Washington Law Review


The question we should ask of the Warren Court is not whether it succeeded, but whether we want to make it succeed. With the issue thus defined, Professor Black examines the work of the Warren Court, the foundation it has laid in substance and methodology, and the direction future advocacy must take to secure and enlarge upon those foundations. Professor Black compares the Warren Court favorably to the Marshall Court, noting that where the Marshall Court's unique contribution was defining nationhood, the Warren Court's unique contribution was defining citizenship. He urges strong and continuing advocacy to fulfill the Warren Court's vision of citizenship in order that it not be clouded by the type of retrenchment that followed the Marshall Court. Borrowing from the Civil Law, Professor Black suggests the use of analogy in interpreting the Constitution in those instances when the results sought by textual interpretation can only be reached by transcending all feasible lexiographic operations. Such a methodology sees in the Constitution certain positive commands and values which do not for their validity depend upon a particular phrase in the Constitution.

First Page