Congress Is, After All, Not A Body

What Becomes Decisive To A Justice's Functioning On The Court In The Large Area Within Which His Individuality Moves Is His General Attitude Toward Law, The Habits Of The Mind That He Has Formed Or Is Capable Of Unforming, His Capacity For Detachment, His Temperament Or Training For Putting His Passion Behind His Judgment Instead Of In Front Of It. The Attitudes And Qualities Which I Am Groping To Characterize Are Ingredients Of What Compendiously Might Be Called Dominating Humility.

It Is Easy To Make Light Of Insistence On Scrupulous Regard For The Safeguards Of Civil Liberties When Invoked On Behalf Of The Unworthy. It Is Too Easy. History Bears Testimony That By Such Disregard Are The Rights Of Liberty Extinguished, Heedlessly At First, Then Stealthily, And Brazenly In The End.

If One Starts With The Assumption That, In The Absence Of Specific Congressional Authority, A Fixed Rule Of Law Precludes Contracting Officers From Providing In A Government Contract Terms Reasonably Calculated To Assure Its Performance Even Though There Be No Money Loss Through A Particular Default, There Is No Problem. But Answers Are Not Obtained By Putting The Wrong Question, And Thereby Begging The Real One.

Congress Is, After All, Not A Body Of Laymen Unfamiliar With The Commonplaces Of Our Law. This Legislation Was The Formulation Of The Two Judiciary Committees, All Of Whom Are Lawyers, And The Congress Is Predominately A Lawyers' Body.

The History Of Liberty Has Largely Been The History Of The Observance Of Procedural Safeguards.