Black adds:
The problem, then, is to devise such governmental means of deciding as will [hopefully] reduce to a tolerable minimum the intensity of the objection that government is judge in its own cause. Having done this, you can only hope that this objection, though theoretically still tenable [italics mine], will practically lose enough of its force that the legitimating work of the deciding institution can win acceptance.[1]
In the last analysis, Black finds the achievement of justice and legitimacy from the State’s perpetual judging of its own cause as “something of a miracle.”[2]
Applying his thesis to the famous conflict between the Supreme Court and the New Deal, Professor Black keenly chides his fellow pro-New
- ↑ Ibid., p. 49.
- ↑ This ascription of the miraculous to government is reminiscent of James Burnham’s justification of government by mysticism and irrationality:
In ancient times, before the illusions of science had corrupted traditional wisdom, the founders of cities were known to be gods or demigods.… Neither the source nor the justification of government can be put in wholly rational terms… why should I accept the hereditary or democratic or any other principle of legitimacy? Why should a principle justify the rule of that man over me? … I accept the principle, well … because I do, because that is the way it is and has been.
James Burnham, Congress and the American Tradition (Chicago: Regnery, 1959), pp. 3–8. But what if one does not accept the principle? What will “the way” be then?
