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ANATOMY OF THE STATE Black adds:

The problem, then, is to devise such governmental means of deciding as will [hopefully] reduce to a tolerable minimum the intensity of the objection that government is judge in its own cause. Having done this, you can only hope that this objection, though theoretically still tenable [italics mine], will practically lose enough of its force that the legitimating work of the deciding institution can win acceptance.

In the last analysis, Black finds the achievement of justice and legitimacy from the State’s perpetual judging of its own cause as “something of a miracle.”

Applying his thesis to the famous conflict between the Supreme Court and the New Deal, Professor Black keenly chides his fellow pro-New