Sometime around third or fourth grade we learned that America has three branches of government. Maybe they taught us then then that the members of one branch, the judicial, are nominated by the executive branch and confirmed by a part of the legislative. This includes all Federal judges and specifically the United States Supreme Court. Most of us probably forgot that quirk in our governmental process.
These judges serve for life, often still making decisions at ages that would be seen as inappropriate for other positions of such importance. Generally, unless we are avid intellectuals or constitutional scholars or perhaps members of the legal profession, we know little about them professionally. We see their annual picture; hear about some of their findings; watch the Chief Justice give the oath of office to the President and probably could not name the last five Chief Justices. Pointedly nor could we in truth describe precisely how and why they make their decisions.
We say we are a country of laws; well, they are the final arbiter of law-making. Their decisions are the very definition of de jure. If there is a pedestal, they are on it.
Like many of us, I don’t think I gave the Supreme Court much reflection. Oh sure, there were the famous cases: Dred Scott, Plessey v Ferguson, Brown v Board of Education, Roe v Wade, Miranda Rights and a lot of other names from Law & Order and unquestionably the bewildering selection of the winner in the presidential election of 2000.
These judges serve for life, often still making decisions at ages that would be seen as inappropriate for other positions of such importance. Generally, unless we are avid intellectuals or constitutional scholars or perhaps members of the legal profession, we know little about them professionally. We see their annual picture; hear about some of their findings; watch the Chief Justice give the oath of office to the President and probably could not name the last five Chief Justices. Pointedly nor could we in truth describe precisely how and why they make their decisions.
We say we are a country of laws; well, they are the final arbiter of law-making. Their decisions are the very definition of de jure. If there is a pedestal, they are on it.
Like many of us, I don’t think I gave the Supreme Court much reflection. Oh sure, there were the famous cases: Dred Scott, Plessey v Ferguson, Brown v Board of Education, Roe v Wade, Miranda Rights and a lot of other names from Law & Order and unquestionably the bewildering selection of the winner in the presidential election of 2000.
But nothing till now got me into thinking about the philosophical values and tenets that form the persona, the soul of individual justices. I always saw them as some sort of a team. That changed.
Last week, October 5th to be precise, Justice Antonin Scalia and Justice Steven Breyer appeared before the Senate Judiciary Committee. During his remarks, Justice Scalia, longest serving member of the Court stated for the record: "I'm hoping that the 'living Constitution' will die."
He is long known as a fervent advocate of "originalism", a mode of constitutional interpretation that left to Scalia’s decision, would compel judges to look to the meaning of the Constitution's text at the time of its ratification two hundred twenty plus years ago. There is also therefore a logical corollary: to essentially ignore the significant changes that have taken place in America and the world since then, changes that have a relatively few times impelled re-examining the Constitution.
He wants his fellow law lords in the federal judiciary to look into the minds of the framers, a term that generally refers to the 57 members of the Constitutional Convention of 1787 and more specifically to Madison, Hamilton, Jefferson and Franklin and who were its primary authors.
He further sees this as a litmus-test for selection of judges, a conviction that belies the idea of free and open debate among legal scholars. Consider this: if all judges were of the same single-minded opinion, there would be no descent on any issue of constitutionality.
One wonders then why the Founders of our Republic decided that the highest court in the land would have nine members. If consistent agreement was expected by these learned gentlemen then why not three or five.
More on-point why is there an included mechanism (actually two) in the Constitution to countenance change? The answer must lie in what Justice Breyer reminded the Senate: "It is a constitution we are expounding….. to be adapted to the various crises of human affairs." This is a quote from Chief Justice John Marshall in 1819, a time in which a number of the Founding Fathers including Jefferson, Madison and Adams were still alive.
Surely, by including these measures they foresaw the necessity to “adapt”, i.e. to modify or revise or to use the very word they incorporated in the Constitution: to amend. They wisely made the process difficult to succeed but by the mere inclusion of these mechanisms they acknowledged it would be inevitably needed. They also assured that changes should not and could not be executed without the greatest deliberation, two-thirds vote in both the House and Senate and further, even requiring the concurrence of 75% of the state legislatures.
Parenthetically, there is no place within the amendment process for action by the President.
Assuming we had a court composed of such judges; what would it mean? Does strict construction or originalism eradicate the first ten amendments, The Bill of Rights? Of course not. They are stare decisis, the obligation of the U.S. Supreme Court to honor past precedents. But it would bring into question the position of other amendments should similar questions to them arise today. Simple question: term limits for the President was never a question for the Founders yet we have the 22nd Amendment that limits the executive to two terms. Should we revert to the former as it was the choice of those who penned the original document?
And then there are others: giving electoral power to the residents of the District of Columbia; the elimination of the poll tax; changing the voting age to 18; women’s suffrage.
Are we to believe that all these were with the thought process of our Founding Fathers? Doubtful. Consider that these remarkable men fought a war about taxes; how do you think they would feel about the 16th amendment that allowed for taxation on their incomes?
Want to see a clear example: we began our First Congress with the legislatures of the various states choosing the US Senators. Think about that: the body of people with the most legislative clout being picked largely by cronyism and not all by the people. That practice, a part of the Constitution, lasted till amended in 1912, a hundred and twenty years later. My guess is that “originalists” of today would have left it as it was.
Even better was the 11th Amendment that limited the power of the Supreme Court. Was it important: yes it was and as such passed in 340 days start to finish. Contrast that with the 27th that took 74,003 days to be ratified – do the math: 203 years. That one dealt with congressional pay. There is a message there.
I think it is good to have public debates that include outermost views if for no other reason than they enable us to set the borders of common sense. Whether it is Ron Paul and Michelle Bachman today or Norman Thomas and Henry Wallace in former times, the views they proffer motivate discussion and encourage debate and that is good for the process and for the nation. However, ultimately, as we have seen with Barry Goldwater and George McGovern, the voting public rejects presidential aspirants who were clearly outside of the left-right centrist mode.
In a recent blog I offered my views that the American people were largely critical of extremist views when it came to electing senior public officials. I stand by that opinion as have others who have shared their thoughts after reading the piece. Let’s hope that this applies to all the branches of government, notably the appointed one.
And let’s be thankful that the judicial appointment process in our beloved constitution allows for differing views. Our political changes are not brought about by revolution but by evolution and thus the instruments of government must have the flexibility to evolve, to evolve as they have since the founding of our Republic.
Last week, October 5th to be precise, Justice Antonin Scalia and Justice Steven Breyer appeared before the Senate Judiciary Committee. During his remarks, Justice Scalia, longest serving member of the Court stated for the record: "I'm hoping that the 'living Constitution' will die."
He is long known as a fervent advocate of "originalism", a mode of constitutional interpretation that left to Scalia’s decision, would compel judges to look to the meaning of the Constitution's text at the time of its ratification two hundred twenty plus years ago. There is also therefore a logical corollary: to essentially ignore the significant changes that have taken place in America and the world since then, changes that have a relatively few times impelled re-examining the Constitution.
He wants his fellow law lords in the federal judiciary to look into the minds of the framers, a term that generally refers to the 57 members of the Constitutional Convention of 1787 and more specifically to Madison, Hamilton, Jefferson and Franklin and who were its primary authors.
He further sees this as a litmus-test for selection of judges, a conviction that belies the idea of free and open debate among legal scholars. Consider this: if all judges were of the same single-minded opinion, there would be no descent on any issue of constitutionality.
One wonders then why the Founders of our Republic decided that the highest court in the land would have nine members. If consistent agreement was expected by these learned gentlemen then why not three or five.
More on-point why is there an included mechanism (actually two) in the Constitution to countenance change? The answer must lie in what Justice Breyer reminded the Senate: "It is a constitution we are expounding….. to be adapted to the various crises of human affairs." This is a quote from Chief Justice John Marshall in 1819, a time in which a number of the Founding Fathers including Jefferson, Madison and Adams were still alive.
Surely, by including these measures they foresaw the necessity to “adapt”, i.e. to modify or revise or to use the very word they incorporated in the Constitution: to amend. They wisely made the process difficult to succeed but by the mere inclusion of these mechanisms they acknowledged it would be inevitably needed. They also assured that changes should not and could not be executed without the greatest deliberation, two-thirds vote in both the House and Senate and further, even requiring the concurrence of 75% of the state legislatures.
Parenthetically, there is no place within the amendment process for action by the President.
Assuming we had a court composed of such judges; what would it mean? Does strict construction or originalism eradicate the first ten amendments, The Bill of Rights? Of course not. They are stare decisis, the obligation of the U.S. Supreme Court to honor past precedents. But it would bring into question the position of other amendments should similar questions to them arise today. Simple question: term limits for the President was never a question for the Founders yet we have the 22nd Amendment that limits the executive to two terms. Should we revert to the former as it was the choice of those who penned the original document?
And then there are others: giving electoral power to the residents of the District of Columbia; the elimination of the poll tax; changing the voting age to 18; women’s suffrage.
Are we to believe that all these were with the thought process of our Founding Fathers? Doubtful. Consider that these remarkable men fought a war about taxes; how do you think they would feel about the 16th amendment that allowed for taxation on their incomes?
Want to see a clear example: we began our First Congress with the legislatures of the various states choosing the US Senators. Think about that: the body of people with the most legislative clout being picked largely by cronyism and not all by the people. That practice, a part of the Constitution, lasted till amended in 1912, a hundred and twenty years later. My guess is that “originalists” of today would have left it as it was.
Even better was the 11th Amendment that limited the power of the Supreme Court. Was it important: yes it was and as such passed in 340 days start to finish. Contrast that with the 27th that took 74,003 days to be ratified – do the math: 203 years. That one dealt with congressional pay. There is a message there.
I think it is good to have public debates that include outermost views if for no other reason than they enable us to set the borders of common sense. Whether it is Ron Paul and Michelle Bachman today or Norman Thomas and Henry Wallace in former times, the views they proffer motivate discussion and encourage debate and that is good for the process and for the nation. However, ultimately, as we have seen with Barry Goldwater and George McGovern, the voting public rejects presidential aspirants who were clearly outside of the left-right centrist mode.
In a recent blog I offered my views that the American people were largely critical of extremist views when it came to electing senior public officials. I stand by that opinion as have others who have shared their thoughts after reading the piece. Let’s hope that this applies to all the branches of government, notably the appointed one.
And let’s be thankful that the judicial appointment process in our beloved constitution allows for differing views. Our political changes are not brought about by revolution but by evolution and thus the instruments of government must have the flexibility to evolve, to evolve as they have since the founding of our Republic.
