Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, it reminds one of the fundamentalist church sign which proclaimed, "God said it. We believe it. That's all there is to it."
The need for judicial balancing, I suggest, results from the imperfection of mundane law. In a better world, no doubt, clear and precise legal rules would anticipate all possible contingencies. No wonder, then, that idealists are impatient with the balancing process. Mr. Frantz" solution has a familiar ring. He suggests that law precedes, and apparently even transcends, politics.' Here is our old friend "the brooding omnipresence"--"the higher law"--that Holmes and Brandeis among others fought so hard to kill. Surely in a democracy law is a creature of the political processes, constitutional and legislative. Judges,of course, cannot avoid legislating in some degree, but to repeat Holmes' much quoted phrase they must do so only interstitially--lest they rather than the people govern.
The First Amendment and the Judicial Process: A Reply to Mr. Frantz,
17 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol17/iss2/5