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89 Harv. L. Rev. 1 (1975-1976)
Constitutional Common Law

handle is hein.journals/hlr89 and id is 19 raw text is: VOLUME 89

NOVEMBER 1975

NUMBER 1

HARVARD LAW REVIEW                                                  I
THE SUPREME COURT
1974 TERM
FOREWORD: CONSTITUTIONAL COMMON LAW
Henry P. Monaghan *
M R. JUSTICE Powell has publicly characterized the 1974
Term of the Supreme. Court as a dull one.' Whatever
the accuracy of that description,2 the 1974 Term            was, in the
public eye, a quiet one. When, late in the Term, the Court
ordered the death penalty case ' held over for reargument, it en-
sured that the 1974 Term would generate few front-page testi-
monials to the supreme authority of the Supreme Court. But
neither a dull nor a quiet Term can obscure the current reality
that the Court's claim to be the ultimate interpreter of the Con-
stitution  appears to command more nearly universal respect
today than at any time since Chief Justice Marshall invoked that
document to deny Mr. Marbury the commission to which he was
* Professor of Law, Boston University. B.A., University of Massachusetts,
i9s; LL.B., Yale, 1958; LL.M., Harvard, i960.
' Opening remarks at the Judicial Conference of the Fourth Circuit, June 27,
1975.
'No modem Term is, of course, without its significant decisions, ones that
frequently contribute far more to the enduring fabric of our law than their more
sensational counterparts. In that respect the 1974 Term was far from dull, as is
evident from the Court's decisions in the areas of criminal law, see pp. 51-70
infra, federal jurisdiction, see pp. 151-95 infra, antitrust, see pp. 202-I infra,
labor law, see pp. 234-54 infra, and securities regulation, see pp. 254-74 infra.
In the field of constitutional law some small moves were made in reducing the
considerable uncertainty presently enveloping judicial interpretations of due process
and equal protection. Apart from the sex discrimination cases- which continue
to be a law unto themselves, see, e.g., Stanton v. Stanton, 421 U.S. 7 (1975),
noted pp. 95-io4 infra- the Court seems to be returning to a hands off atti-
tude toward state economic and social legislation. For example, in Weinberger v.
Salfi, 95 S. Ct. 2457 (1975), noted pp. 77-85 infra, the Court sounded the death
knell for the much criticized irrebuttable presumption doctrine.
' State v. Fowler, 285 N.C. 90, 203 S.E.2d 8%3 (1974), cert. granted sub nom.
Fowler v. North Carolina, 419 U.S. 963 (1974), restored for reargument, 95 S.
Ct. 2652 (1975).
4 Powell v. McCormack, 395 U.S. 486, 549 (1969). See generally G. GuNTHER,
CASES AND MATERIALS ON CoNsTITUTIoNAL LAW 25-34 (9th ed. 1975).

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