CAHN, EDMOND (1906–1964)

Edmond Cahn's civil libertarianism emphasized the importance of a written Constitution and the role of the judiciary in upholding the guarantees of the bill of rights. Judicial review is a historically "legitimate" device, he believed, for "converting promises on parchment into living liberties," and the Supreme Court is "the nation's exemplar and disseminator of democratic values." "The firstness of the first amendment " ensures "the indefinitely continuing right to be exposed to an ideological variety." separation of church and state strengthens both entities and places sovereignty of choice in the populace. The First Amendment, by securing the basis for participation in the democratic process, provides an indispensable moral link between the governed and the governors.

Cahn's fact-skepticism, continually questioning factual assumptions, led him to indict capital punishment, because a mistake-laden legal system should not impose an irreversible penalty. He insisted that the morally neutral social sciences occupy a subordinate place in judicial decisions and that "a judge untethered by a text is a dangerous instrument." He shared much in common with his friend, Justice hugo l. black, whose off-Court advocacy of First Amendment absolutism he did not explicitly adopt. Cahn, a professor of law at New York University, had great confidence in the democratic citizen, freed from false certainties and protected by the mandates of the Bill of Rights, to prevent or repair injustice.

Roger K. Newman
(1986)