Perhaps I would be safer writing about those other Supremes. You know, the Diana Ross ones, but I’ve never been one to shirk my duty. One might think it presumptuous for me to opine about the holy of holies, the highest court in the land, but I’m no stranger to the Court, the Constitution, or its rulings thereupon.
Unlike most of the great unwashed in our land, I’ve actually studied the relationship between our Constitution and the law as interpreted by the Court. For I, you see, took Constitutional Law 101.It was in the spring of 1963 to be exact. Dr. S. was the professor whose job it was to introduce a group of twenty or so mostly reluctant students to the intricacies of Constitutional Law and the mostly “landmark cases” which provide a framework for our system of government.
My clearest memory of these extraordinarily boring sessions with Dr. S. was of my class mate Danny B. who was notable in that he played linebacker for the college eleven, and dressed only in black when not on the football field. His limited wardrobe of a black t-shirt and black jeans or chinos served to accentuate a large tattoo on his lower arm. I had never seen a tattoo on a real person, so I was more than a little fascinated and, if the truth be known, frightened by Danny and his tattoo. Danny, least of all of us in the room, had little business being in this class, and I can’t imagine why his coaches or advisor let it happen, but there he was.
Dr. S’s approach to this introductory course was to play a movie of a “land mark” case each day and ask us to “brief” the case to be turned in the next class. For the first half semester Danny snoozed through McCulloch v. The State of Maryland and Marbury v. Madison, and I’ll admit, the darkened classroom and the absence of the professor provided almost insurmountable temptation to rest ones eyelids. As the spring weather improved, the old large casement windows were thrown open to provide a whiff of fresh air to the otherwise unairconditioned room. Danny recognized an opportunity when he saw it and chose fresh air and freedom over Dred Scott and Plessy v. Ferguson. As soon as the room went dark and the projector started, Danny climbed out the window not to be seen again until the next session.
I asked Danny if he was going to take the final, which was required for even a remote chance of passing the course. Danny said he had it nailed. Further inquiry determined that Danny had procured a copy of last years final and was getting someone to write up all the answers to the questions in advance. He planned on bringing them to the classroom on the day of the final and inserting them in the “blue book” in which we were supposed to submit our answers to the exam. I told Danny that there was a lot that could go wrong with his plan…for example…what if Dr. S asked about Brown v. The Board of Education rather than the case he asked about last year. Danny scratched his head and allowed that as far as he could figure, all of these cases were pretty much the same and it wouldn’t matter much which answer he handed in for the test. Maybe he was right. Having worked my a** off, I made a B minus. Danny made a C. Maybe they were all the same after all.
The cohort of nine old white men that formerly composed the Court has now morphed into five white men (mostly old), one middle aged black man (who thinks like an old white man) and three women (one old and two not so). Interestingly the exact number of members of the court is not specified in Article III of the Constitution which creates the judiciary. Several presidents have attempted to tinker with the number, but with little success. Also, the only thing the Constitution says about tenure is that they shall serve “during periods of good behavior”. There is nary a word about lifetime tenure. Of course, a substantially lower life expectancy obviated the need of the framers to include term or age limits, or so they thought. How time changes things. The United States is the only country that has judges who are appointed, in effect, for life.
Today, as for the last two hundred or so years, the arguments rage on. Concepts like original intent, strict constructionism, legislating from the bench, and judicial activism are debated and used to support one’s point of view or refute the judgements one opposes. I dunno who’s right about what, but I do have a couple of thoughts to offer. Don’t worry, I’m not going to try to brief any cases for you even though a couple of them are mentioned to illustrate my principle points. Let’s see now. The Constitution of the United States of America was written by delegates from twelve of the thirteen states (Rhode Island did not participate for some reason) in 1787 and ratified by eleven the states in 1789. The new document was approved in part because it was considered an improvement over the Articles of Confederation which had been the law of the land since 1781, but it was not without shortcomings. To wit: the document has now been amended twenty seven times to address said shortcomings and has occupied the Supreme Court in rendering 30,161 opinions, many of which were dedicated to interpreting what the Constitution meant when it said what it said, or meant to say….you get what I mean. Oh yes, surely you remember what it said about the issue of slavery. More on that later.
I’m no student of etymology or semantics, but how long has it been since you read something written over two hundred years ago…and understood it. Words have changed, context has changed, and, thankfully, even values have changed. I cite the so called Commerce Clause, which is actually Article 1, Section 8, Clause 3, wherein it stipulates that the federal government has the power to “regulate commerce with foreign nations, and among the several states and with indian tribes.” That’s pretty much it. That’s all it says about regulating commerce. All the rest…interstate highways, integrated economies, the internet, minimum wage, child labor restrictions, et al arise from this single clause of sixteen words written 223 years ago by well intended citizen/legislators who did not have the ability to look into the future. To now suggest that this clause contemplates some sort of universal meaning arising from the framers “original intent” seems shortsighted at best. I suggest that interpretation in light of changing circumstances and necessities of contemporary life is definitely in order.
As for judicial activism I only have to cite the aforementioned cases of Plessy v. Ferguson and Brown v. The Topeka Board of Education. I’m not going to give you the details, you can look them up, but the Court’s decision in Plessy gave constitutional cover to the principle of “separate but equal”. In other words, segregation was fine with them and the Constitution. This was the law of the land for fifty eight years until the Court made a truly unprecedented decision (that is a decision not based on the principle of stare decisis) in Brown v. The Topeka Board of Education in 1954. Their decision was based on a reading of the same words in the same constitution that other earlier Court members had read when they rendered their decision in Plessy. How then did the Court reverse its field, ignore precedent and establish a new constitutional principle? I think I know. The will of the people had changed. Our sense of right and wrong had changed. The public wanted equity for all of its citizens, and finally, the Court changed with the times. Thank god.
The Dred Scott case was somewhat different in that it affirmed the accepted constitutional fact that slaves were not and could not become citizens; although Jefferson had famously asserted in our other founding document, The Declaration of Independence, that “…all men are created equal”. The constitutional principle that the Court elicited from the Dred Scott case was never overturned by the Court. Instead, it took the passage of the 14th amendment in 1898 to redress this bit of constitutional evil. Why did it take over one hundred years to reframe the Constitution to state what now is accepted by all? Why did our founding fathers author a document that perpetuated a failing in our society so blatant? So much for the idea that the Constitution is immutable and that the “original intent” should be honored at every turn, and that “strict construction ” should be the guiding principle for jurists today and in the future. A strict constructionist would still be supporting the original constitutional mandate that only 3/5 of black Americans (presumably descendants of former slaves) be counted for apportionment purposes.
There is only one judicial principle that I have deduced from my thoughts on the subject of the Supreme Court, and that is that is far better to be on the 5-4 side of the court’s opinion than the 4-5 side. I’d like to think, however, that as in the Brown case, every now and then the Court will do the right thing merely because its the right thing to do.
