Neutral Principles

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"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."

Wechsler's address set off a furious debate over the idea of neutral principles. Some, such as Professor Louis Pollak, supported the idea of neutrality, but felt it was possible to identify a neutral principle to justify Brown: No majority race should subjugate a minority race. Many other constitutional scholars felt that the very idea of neutrality as advanced by Wechsler was naïve or bankrupt. Although their views differed, these scholars, among them alexander m. bickel, Arthur Selwyn Miller, Eugene Rostow, Charles Black, Martin Shapiro, and Jan Deutsch generally believed that what mattered ultimately was whether any given decision of the Court was morally correct and could garner acceptance among the body politic.

The neutral principles position taken by Wechsler must be understood in its broader social and jurisprudential context. In the first half of the twentieth century, a group of scholars commonly referred to as the legal realists argued that legal outcomes inevitably were influenced by the views of the judges applying the law, and by the social milieu in which decisions were rendered. This Realist insight troubled many, for it seemed to deny law its neutrality and to equate law with politics. A later group of scholars developed a school of thought known as the "Legal Process" school, which sought to preserve a unique role for law apart from politics. In the view of the Legal Process school, the secret to sound constitutional decisions was "reasoned elaboration." By relying on reason, courts could differentiate their work from that of the more political branches of government. Wechsler was a Legal Process scholar, and it was in this context that he challenged the Court to rely on neutral principles to avoid being seen as a "naked power organ." Other Legal Process scholars who advocated reliance on reasoned elaboration were henry m. hart, jr. , and phillip b. kurland. Opponents of the Legal Process scholars doubted whether reason alone either achieved the sort of neutrality that Wechsler advocated, or was a sufficient basis for deciding cases.

Neutral principles played an important role in the more enduring debate over the role of the Court and judicial review. Many of the warren court ' s progressive decisions, such as those involving freedom of speech, racial discrimination, and reapportionment won broad popular support, but that support declined by the late 1960s. The Court expanded the rights of criminal suspects at a time when crime rates were rising, and richard m. nixon was elected President vowing to appoint Justices to the Supreme Court who would follow closely the original meaning of the Constitution. The Court became a special target of controversy after it decided roe v. wade (1973), which guaranteed a woman the right to abortion. Many critics of Roe complained that the right to abortion could not be found in the Constitution. In the face of skepticism about neutral principles and the power of reasoned elaboration, these critics now began to insist that Supreme Court Justices adhere closely to the text of the Constitution and the intentions of those who drafted and ratified it, in order to avoid imposing judicial preferences on the body politic. Thus, the neutral principles debate served as a bridge between the insights of the Legal Realists, and the modernday debate over the proper method of constitutional interpretation.

Barry Friedman

(see also: Constitutional Interpretation; Constitutional Theory; Original Intent; Originalism.)


Duxbury, Neil 1995 Patterns of American Jurisprudence. New York: Oxford University Press.

Friedman, Barry 1997 Neutral Principles: A Retrospective. Vanderbilt Law Review 50:503–536.

Hand, Learned 1958 The Bill of Rights. Cambridge, Mass: Harvard University Press.

Horowitz, Morton J. 1992 The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press.

Miller, Arthur Selwyn and Howell, Ronald F. 1960 The Myth of Neutrality in Constitutional Adjudication. University of Chicago Law Review 27:661–695.

Peller, Gary 1988 Neutral Principles in the 1950's. University of Michigan Journal of Law Reform 21:561–622.

Pollak, Louis H. 1959 Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler. University of Pennsylvania Law Review 108:1–34.

Sebok, Anthony J. 1996 Reading the Legal Process. Michigan Law Review 94:1571–1595.

Shapiro, Martin 1963 The Supreme Court and Constitutional Adjudication: Of Politics and Neutral Principles. George Washington Law Review 31:587–606.

Wechsler, Herbert 1959 Toward Neutral Principles of Constitutional Law. Harvard Law Review 73:1–35.