About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


61 Mich. L. Rev. 283 (1962-1963)
The Constitution and Contempt of Court

handle is hein.journals/mlr61 and id is 301 raw text is: THE CONSTITUTION AND CONTEMPT OF COURT* Ronald Goldfarbt I. INTRODUCTION T HE contempt power of American courts is as old as our judi- ciary itself and, while derived from historical common-law practices, is peculiar both to and within American law. It is pecu- liar to American law in that other legal systems (not based on the English) have no such power of the nature or proportions of ours.' It is peculiar within our system in that no other of our legal powers is comparable to contempt in pervasiveness or indefiniteness. Nor does any analogy come to mind of a legal power with the inherent constitutional anomalies characteristic of contempt. The contempt power of American courts is truly sui generis, to adopt a favorite cliche of our judiciary. Few legal devices find conflict within the lines of our Consti- tution with the ubiquity of the contempt power. These conflicts involve issues concerning the governmental power structure such as the separation of powers and the delicate balancing of federal- state relations. In addition, there are civil rights issues attributable to the conflict between the use of the contempt power and such vital procedural protections as the right to trial by jury, freedom from self-incrimination, double jeopardy, and indictment-to name only the most recurrent and controversial examples. Aside from these problems, there are other civil liberties issues, such as those involving freedom of speech, association, and religion, aris- ing out of the exercise of the contempt power. The purpose of this article is to present an extensive review of the constitutional problems provoked by the use of the contempt power by American courts.2 Most of the constitutional issues concerning the courts' con- tempt power arise from both its procedural authorization and prac- tical implementation. A brief outline of contempt procedures should assist the review which follows. * The substance of this article is drawn from a book to be published by the author entitled THE CONTEMPT Pow.R. Other articles adapting sections of this book have ap- peared in 24 MoDmN L. REv. 239 (1961); 36 N.Y.U.L. Rav. 810 (Q961); 13 SYRAcusE L. REV. 44 (1961); and 1961 WASH. U.L.Q. 1.-Ed. t Member of the California and New York Bars.-Ed. 1 See generally Goldfarb, The History of the Contempt Power, 1961 WAsH. U.L.Q. 1. 2 Analogous constitutional problems relating to the congressional and administrative contempt powers will not be discussed in detail in this article. 283 ]