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"Marshall indicated [in Gibbons] that in his view, congressional power to regulate 'commercial intercourse' extended to all activity having any in terstate impact-however indirect." Lawrence R Tribe

In a revisionist effort Howard Gillman finds that Chief Justice Marshall despite his and the Founders' widely recognized concern for national in terests--was in fact responsible for the Knight states-rights disaster in 1895. In my view nothing Marshall said or did supports the revisionist view- indeed much of what he said and did repudiates it. I suggest that dual federalism, the doctrine on which Knight turns, was a concoction of the plantation South to thwart Marshall's and the Founders' well-known nation alism. I suggest further that this concoction was part of the "lost cause" until the 1890s when business lawyers adopted it for their own anti-federal-regulation purposes. The result was Knight.

In 1921, long before Felix Frankfurter became a judge, he said, "The simple fact of the matter is that . .. the [Supreme] Court, under the guise of legal form, exercises political control."' However radical this view may have seemed at the time, sixty years later it had become something of a commonplace, thanks largely to the Warren Court. Judges had pushed beyond desegregation to integration via busing; they had undertaken to reapportion legislatures, to provide a detailed abortion code, to supervise police investigations, to outlaw capital punishment in effect and then to reinstate it with limitations, to supervise the supervision of children in their schools, to manage prison and mental institutions, to regulate private employment practices, to oversee any number of welfare programs, to direct credit policies of banks and credit-card companies, to monitor environmental quality, and even to supervise municipal land-use planning-all in the name of interpreting the Constitution!2 That was make-believe. One of the dynamic movements in modern jurisprudence is led by avant-garde liberals whose formative years coincided with the "enlightenment" that Chief Justice Earl Warren inspired. Bemused by his sense of fairness, these so-called noninterpretists are too sophisticated to accept his simple-minded methodology. What they want is Warrenesque government by judges without Warrenesque make-believe. They want, for example, contraception and abortion "privacy" without the pretense that it comes from the Constitution. As one of their gifted leaders put it, they reject the Courts "resort to bad legislative history and strained reading of the constitutional language to support

Dr Delbanco: Mrs G is a 96-year-old widow who has had trouble sleeping for the past 30 years. She has lived in a long-term care facility for the past 3 years, where she was admitted due to increasing physical disability and falls. She has 1 son with chronic depression with whom she has minimal contact. Her insurance is through Medicare and a supplemental commercial insurance program. Mrs G began to have difficulty falling asleep at the age of 65 years. At that time, and over the next 30 years, she took acetaminophen each evening, which she claims helped her go to sleep. When she developed sciatica 3 years ago, she had more trouble with sleeping and began taking oxazepam irregularly. She started to take it regularly 1 year ago when, in addition to her physical discomfort, she was disturbed by her cognitively impaired roommate in the nursing home. Mrs G

Professor Goldman agrees with the view expressed in my "Conclusion" that Brandeis had high regard for freedom of communication. On this basis plus Olmstead he is willing to "wager" that Brandeis would have been a "liberal activist" in the 1960s and 1970s. I leave prophecy to others. I do know, however, that Brandeis was with the majority, for example, in Palko and the Poll Tax Case both of which the activists of the 1960s overruled.' He was also with the

1 PROFESSOR MELONE insists that those who gave us Article I, Section 10 intended the word "contracts" to mean only "private * contracts." That would be like using the word "persons" to mean only "men" or like using the term "freedom of speech" to mean only "freedom of state-approved speech" (see Gitlow and Dennis). Surely the burden of proof must fall on those who charge the Founders with using a crucial word in such an unnatural, unprecedented, misleading way.

RAOUL BERGER'S Government by Judiciary (1977)1 offers the latest of a long series of incompatible interpretations of the Fourteenth Amendment. His thesis is that the heart of the matter is the Privileges or Immunities Clause, which for the 39th Congress (whence it came) ". . . had [a] clearly defined and narrow compass" revealed in the "rights . . . enumerated" in the Civil Rights Act of 1866.2 The Due Process and Equal Protection Clauses, it seems, were meant merely as adjuncts for implementing the privileges clause.3 No doubt there were some in the 39th Congress who held this view. Yet each of the three sponsors of the Fourteenth Amendment found more in it than that. Congressman John Bingham, its chief architect, observed in his final summation in the House,4

N OT SO LONG AGO it was sound liberal doctrine that judges should avoid as much as possible adjudication of constitutional issues. This view found classic expression in the Brandeis minority opinion in Ashwander.' As the Justice put it off the bench, "The most important thing we do is not doing."2 The thought of course was that the fewer social issues preempted by courts, the more that are left for resolution via the democratic process. With the advent of the Roosevelt Court the Brandeis view became majority doctrine in Rescue Army v. Municipal Court.3 Old fashioned liberalism had won a major victory. Deeply skeptical with respect to our political processes, today's "activists"-the new liberals?-seem markedly inclined to put their policy eggs in the judicial basket. Indeed their great victories have been won in court. And so it is not strange that a major element of modern activism is an effort to open more widely the gateway to the federal judiciary. Indeed it seems no more than caricature to suggest that the "neo-liberal" goal is to shunt as many policy issues as possible from the political processes to the federal courts, especially the Supreme Court. Mr. Justice Douglas was a leading spokesman for this approach. What follows seeks to demonstrate that proposition-and to indicate its implications in one major area of constitutional law.

For centuries legal scholars have pursued the development of national law. Quite recently political scientists have begun to explore the development of nations. The literature is already massive. Yet little or none of it recognizes the place of law in national growth. My purpose here is to suggest-for those who may want to pursue it-the crucial role of law in developing nations. For in "all societies the historical function of law has been to elaborate, rationalize, and protect . . . dominant (or emerging) institutions and accredited ways of life." As Holmes put it, the law reveals "every painful step and every world-shaking contest by which mankind has worked . . . its way from savage isolation to organic social life." I take as a model Professor Organski's view that modern na- tions have gone through three stages of political development: the politics of primitive unification, the politics of industrialization, and the politics of social welfare.1 In stage one the primary problem is political integration-"the creation of national unity." Stage two is a battle for economic and political modernization. Accordingly the chief governmental function is to encourage a new elite-the industrial managers-and to promote the "accumulation of capital." Finally in stage three government's chief job is "to protect the people from the hardships of industrial life," to right by welfare programs the wrongs of the earlier stages. Today most nations are still hovering in stages one or two. Japan, Western Europe, and the Soviet Union are somewhere- early or late-in stage three. The United States is perhaps ap- proaching what may be a fourth stage-an age that may have greater reverence for life. Hippydom may be its harbinger.

The basic problem of government is the reconciliation of liberty and authority. Federal systems face the additional problem of harmonizing conflicts between two levels of government which must rule in the same geographical area. Under our late system of judicial supremacy these were "legal" problems and consequently the main gtist of Supreme Court business. But one suspects, with Mr. justice Holmes, that these "legal" problems were often solved by judicial application of economic philosophy. The conclusion, for example, that neither nation nor state could regulate "wages and hours," or ban yellow dog practices,' seems more the dictate of laissez faire philosophy than of constitutional provisions. Substantive due process and dual federalism2 were simply the constitutionalization of an economic attitude. How else account for the anarchic no man's land where crucial problems of modern social life could neither be dealt with by the federal government, because of restraints upon national power found inherent in the reserved powers of the states, nor by the states, for all their reserved powers, because of limitations found in due process for the "protection" of individuals (including corporations) ?

analytical lines of separation and has recognized necessary areas of interaction among the departments of government."7 Later, as the judicial attack shifted to an imposition of court procedures upon administrative agencies, Professor Frankfurter revealed his own attitude when he described the reaction of one of the great dissent

M AY I SUGGEST that you made a revealing error when you wrote that Justices Black and Frankfurter "say the same thing" about state interference with interstate commerce?L Your assertion presumably springs from the behavioralist concentration upon what judges do as distinct from what they say. Yet in not knowing (or not caring) what they say, one is in a poor position to insist upon a discrepancy between their words and deeds. In short, your major thrust rests on a false premise. You find that in state regulation cases, Mr. Justice Black is markedly "anti-business" (and correspondingly pro-states rights). Whether ultimately your conclusion is true or false, I suggest it springs from misleading data and a misconception of what the Justice says. For example, about half the cases in your Figure 4 involve state taxation or regulation of interstate commerce. Mr. Justice Black says that in such cases there should be no judicial review (whether the state act is proor anti-business).2 Yet like all judges he recognizes there must be a national veto to protect interstate commerce from destruction by the states.3 His view is simply that the veto should be exercised by Congress rather than by the

Frederick Turner in his study of The Significance of Sections in American History concluded that the shifting relationships between South, "Successive Wests" and Northeast, each with a distinctive economy and culture, furnish the key to national politics. As he put it, "We in America are in reality a federation of sections rather than of states. State sovereignty was never influential except as a constitutional shield for the section. In political matters the states act in groups rather than as individual members of the Union. They act in sections and are responsive to the respective interests and ideals of the sections. They have their sectional leaders, who, in Congress and party conventions, voice the attitude of the section and confer and compromise their differences, or form sectional combinations to achieve a national policy and position." It follows that "Statesmanship. in this nation consists not only in representing the special interests of the leader's own section, but in finding a formula that will bring different sections together in a common policy." 1 If, as Turner holds, national policy is (or once was) determined by shifting geographical alliances, surely the rise of judicial supremacy 2 as the final policy arbiter reflects the inhibition of sectional alignment and realignment that followed the Civil War. Nor can it be bare coincidence

A generation ago “legal realists” led by Jerome Frank and Karl Llewellyn dismissed law as a myth—a function of what judges had for breakfast. The important thing, they insisted, was what a court did, not what it said. No doubt this was good medicine for the times. Yet, however broad Frank's 1930 language, later on the bench he loyally acknowledged the compulsive force of legal rules. As a lower court judge, he decided cases in accordance with what he found the law to be—and on occasion he made clear in addenda what he thought it ought to be.Llewellyn, too, changed his mind. In 1934 he had said, “The theory that rules decide cases seems for a century to have fooled, not only library-ridden recluses, but judges.” Seventeen years later he confessed that his earlier behavioral descriptions of law contained “unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.”In short, after their initial enthusiasm, these and other legal realists recognized that there is and must be law in the judicial process, as well as discretion. This was inevitable, for society can no more dispense with order and coherence than it can deny the demands of changing circumstance. We must have stability, yet we cannot stand still; and so the legal system inevitably has both static and dynamic qualities. Holmes put it in a thimble: “The … law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.”

IN WHAT IS SURELY the most famous footnote in legal history Mr. Justice Stone observed: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. *** It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. *O* Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religions . . . , or national . .. , or racial minorities. *** whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.1 This language has been cited endlessly to justify the "activist" approach that would give civil liberty a "preferred place" in court. However desirable that goal might be, the footnote obviously was presented as speculation, not as a rule of law. Moreover, it is crystal clear that Stone himself did not practice the suggested brand of liberalism. He seems to have considered and rejected it. Indeed those who have a taste for box-score jurisprudence should note Professor Pritchett's studies. They show that in the years following the famous footnote the Justice voted "liberally" in only 44 per cent of the "nonunanimous civil-liberty cases."2

Pulsatile growth hormone (GH) secretion was assessed in a subgroup of short children to determine whether they had GH secretory abnormalities, and these results were compared with those of normal and GH-deficient children. This subgroup of children was defined as having GH neurosecretory dysfunction and met the following criteria: height, less than first percentile; growth velocity, 4 cm/yr or less; bone age, two or more years behind chronological age, normal findings from provocative GH tests (peak, ≥10 ng/mL), low somatomedin-C level, and abnormal 24-hour GH secretory patterns. When compared with controls, both children with GH neurosecretory dysfunction and GH-deficient patients had a significant decrease in parameters relating to the total GH secretion during the 24-hour period. As with GH-deficient children, the group with GH neurosecretory dysfunction more than doubled their growth velocity after replacement therapy with exogenous human GH during the first year of treatment. As a result of these detailed studies on pulsatile GH secretion, we suggest that there is a spectrum of GH secretory abnormalities from absolute deficiency to an intermittent irregularity in GH secretion. (JAMA1984;251:2223-2230)

ENJAMIN WRIGHT has been called "our foremost authority on the contract clause." For nearly half a century his book, The Contract Clause of the Constitution (1938), has been cited endlessly as a difinitive work. No doubt in general it reflects a high order of scholarship. The present purpose, however, is to suggest it is flawed particularly in its treatment of the Supreme Court's early contract-clause decisions. The essence of this charge is that Mr. Wright was guilty of the very thing that twenty years later he ascribed to others

To the Editor.— Abnormal 14/sec and 6/sec spikes have been considered to be associated with a variety of behaviors and neurologic problems. These include violence without subsequent remorse, school difficulties, vegetative symptoms, central nervous system trauma, and muscular dystrophy. Other authors have questioned these findings. Small, 1 for instance, found them in 5% of hospitalized adult psychiatric patients, but they were not associated with symptoms reported in the literature. In our laboratory, we have had the opportunity to record longer (eight-hour) sleep electroencephalograms on a nonpatient population, and have concluded that these abnormal spikes represent a normal finding related to a specific sleep stage. Thirty-four subjects (25 men, 9 women) ranging in age from 18 to 28 were recorded from 10 PM to 6 AM for use as normal controls for pharmacologic studies. Each was interviewed by a psychiatrist who found no gross evidence of psychiatric illness and no history