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Thursday, June 15, 2023

Pharaoh's Dreams

One of the most famous lines in Justice Jackson's Youngstown concurrence is: 'Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." The Supreme Court quoted this line only once (in Clinton v. Jones), but Jackson's vivid description lives on in academic literature as a curt dismissal of originalism. But there is something odd about this line that gets at a common criticism of Jackson, which is that he was sometimes long on rhetoric and short on analysis.

There are other references to the "forefathers" in the concurring opinion. For instance:

"The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image." 

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

In both instances, Jackson evidently thought that he was Joseph. Or that what the forefathers envisioned was not so enigmatic. 



Posted by Gerard Magliocca on June 15, 2023 at 03:53 PM | Permalink


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