Tinker v. Des Moines Independent Community School District · ¶42

The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they “shock the conscience” or that they are “unreasonable,” “arbitrary,” “irrational,” “contrary to fundamental 'decency,’ ” or some other such flexible term without precise boundaries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother Fortas, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court returns to the McReynolds due process…

U. S. Reports, bound volume
U. S. Reports, volume 393, at 503 (Library of Congress) · transcription: Caselaw Access Project
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