Charles Rembar - Perspective

Perspective

Essays

Charles Rembar

For Marjorie Asenath Rembar Radin

PRAISE FOR THE WRITING OF CHARLES REMBAR

The End of Obscenity

Winner of the George Polk Memorial Award in Journalism

The book in your hand is a quiet and essentially modest account of a legal revolution. Norman Mailer

A downright delight, a tour de force to fascinate lawyers and laymen alike. The New York Times Book Review

Erudition and wit, moral conviction and literary style Mr. Rembar is as much social critic and intellectual advocate as lawyer. The National Observer

[Rembars] book deals not with the why of obscenity laws but with the how, and as a result often has a freshness that little recent writing on this subject can match. The story of his oral argument before the Supreme Court in the Fanny Hill case is especially dramatic and enlightening, and many of his anecdotal digressions into history and law are sharp and amusing. The New Republic

A lively volume and often witty Fun withal and instructive. Commentary

[Rembar] talked our courts, state and federal, into capsizing more than a century of court-blessed censorship. The New York Times

The Law of the Land

A learned, thoughtful, witty legal history for the layman. The author, an American attorney, takes us back to Britain before the Norman conquests and brings us forward to the present. The New Yorker

A book that should fascinate both lawyers and those who throw up their hands at them. The Wall Street Journal

The origin and use of such features of our Anglo-American legal system as juries, evidence, and witnesses are studied here in their historical context. Rembar demonstrates wit and erudition as he reviews the political and social life that molded important legal matters. Library Journal

The style, analysis, and commentaryquite properlytake advantage of developments in the phraseology which had not occurred at the time of the events under discussion. The legal profession interested in this subject will find the work deserving attention. National Review

[The Law of the Lands] pages are vintage Rembar: witty, irreverent, intelligent, anecdotal, and very readable. The asides and vignettes are marvelous. The New York Times

Perspective

Rembar writes like a dream. And his feeling for the sanctity of the Supreme Court is stirring. The Boston Globe

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CONTENTS

PREFATORY NOTE

A nation suffers three kinds of crisis: economic, military, and politicalthat last, in our country, more often called constitutional. In the past forty years, we have had all three, in the order named. At any given time there can be more than one of each, but usually one is dominant. The crisis of the nineteen-thirties was economic; we suffered the Great Depression. In the nineteen-forties we had the War. Since the end of the War, there has been an unprecedented series of constitutional exigencies. It began with the endeavor (in which Joe McCarthy was the star and Richard Nixon a featured player) to throttle political dissent. Most recently there has been the attempt to enervate the Congress and the Judiciary and draw all power to the Executive; this eventually, and necessarily, involved the enormous attempt to defeat the rule of law entirely (an effort in which Richard Nixon moved up to starstar, creator of the plot, director and producer, one of the few authentic auteurs).

In these crises we turn to professionals, selected according to need. In the Great Depression, economists were given a public function they never had before. In the War, professional military men came out of their obscurity; we worked to give them what they wanted as though our lives depended on it. When the crisis is constitutional, we look to lawyers; the recent conflicts have been resolved not by violencethat has happened in our history only twice, in the Revolution and the Secessionbut by legal process.

This, of course, does not mean other groups do not share the struggle: the press, for prominent example. But the process being legal, the lawyers are at the center. The ultimate decisions, influenced as they may be by public feeling and opinion, are made within the judicial system and in the quasi-judicial actions of the Congress and the Executive. And in whichever branch of government particular decisions are made, it is mostly lawyers who have the job of defending the Constitution (while some rogue-lawyers are trying to subvert it) as advocates, advisers or renderers of judgment. A judge does not cease to be a lawyer when he ascends the bench.

I have used the term Great Depression though a greater one may be just around the corner. The last thirty years has been a period of pleasant economic weather for most of the people here. I have called the Second World War the War, because it has been our countrys only military crisis in a hundred years. There has never, in the past century, been danger of subjugation or dismemberment except when Hitler had taken France and, if he were not in addition to all else a coward, could have had England too.

The risks of the later Asian wars were, for the United States, more political than military. The Executive assumed, and Congress abdicated, the power to declare war. The clause that lodges that power in the Congress is one of the plainest in the Constitution. It is a provision whose function is to make clear what we are doing not merely to the enemy, but, more important, to ourselves. The Judiciary could not repair the breach that the Executive opened and Congress failed to close, and Vietnam nearly tore the United States apart.

Ordinarily, the courts, without guns or money, are powerful and effective. Though we are said to have a written Constitution, there is, beside it, one unwritten. We are not so different from England in this regard as the common statement tells us. Despite their frequent (and frequently justified) criticisms, Americans have an overwhelming respect for the courts, and especially for the Supreme Court. Without it, our constitutional structure would be quite different. Ill take the case to the highest court is our fondest assertion of right. And Richard Nixons hint that he might defy the courts was a factor in his downfall. This high political function of judicial decision is nowhere stated in the written Constitution.