False Assumptions and the U.S. Supreme Court

by Robert G. Marshall

Description

Many Americans are taught to perceive decisions by the U.S. Supreme Court — particularly Roe v. Wade and Doe v. Bolton — as final and indisputable, not only by the public, but also by the other branches of government. In this article, Robert G. Marshall, a member of the Virginia State House of Delegates, examines the historical precedent for such notions and exposes their invalidity.

Larger Work

Celebrate Life

Pages

38 - 40

Publisher & Date

American Life League, Stafford, VA, January - February 2005

Common Notion #1: The U.S. Supreme Court interprets the true meaning of the Constitution

In 1937, Supreme Court Justice Felix Frankfurter stated: "People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution; whereas, of course, in so many vital cases it is they who speak and not the Constitution."

A former law clerk for Justice Frankfurter, Joseph Rauh, Jr., in a March 5, 1980, Washington Post article, further elaborates on this point, stating, "Precisely because the important issues that come before the court are broad matters of public morality and political statesmanship rather than narrow questions of the law, it was inevitable that the justices and their law clerks would turn out as activists fighting for their own views on public questions . . ."

This might not seem harmful if judges would examine facts objectively, and use reason and sound morality. However, there is evidence to the contrary. The late Justice William O. Douglas, relates in his autobiography that Chief Justice Charles Evans Hughes once told him: "'Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.'

"I had thought of the law of Moses," Hughes reflects, "principles chiseled into granite. I had never been willing to admit to myself that the 'gut' reaction of a judge at the level of constitutional adjudications . . . was the main ingredient of his decision. The admission of it destroyed in my mind some of the reverence for the immutable principles . . . No judge at the level I speak of was neutral. The Constitution is not neutral. It was designed to take the government off the backs of people . . ."

Just why the gut feelings of federal judges are more authoritative constitutional guideposts than the visceral leanings and ethical dispositions than the rest of us is not explained. However, Douglas's last line reveals something of what he thought about "government by the people."

Douglas also relates how Justice Frankfurter privately called Chief Justice Hughes "Bushy." One day Frankfurter told Douglas, "If we can keep Bushy on our side, there is no amount of rewriting of the Constitution we cannot do."

Constitutional rewriting occurs when the Court intrudes into areas like abortion that were once the exclusive domain of the Congress and state legislatures, or when the Supreme Court reverses parts of or all of a prior decision.

The Library of Congress Congressional Research Service has shown (as early as 1979) the Supreme Court overruling itself 168 times — some of which took place within one year. These many reversals do not shake the faith of judicial supremacists in the Court's general infallibility.

"In other words," wrote early twentieth century constitutional scholar, Edward S. Corwin, "owing to some clairvoyant faculty which enters into a man when he becomes a Justice of the Supreme Court, or on account of some mystical connection between the Court and Deity, the Court is able at all times to speak authentic Constitution, with the result, of course, that all who are bound by the Court's version of it . . ."

"It is not possible, of course," he continued, "to disprove such a theory . . . But there are some facts that furnish grounds for skepticism. To refer once more to the phenomenon of overruled cases: Which Court was it that enjoyed divine inspiration — the one that did the overruling, or the one that was overruled? And why this discrimination in the distribution of divine favor? And when a decision disallowing an act of Congress is a five-to-four decision, is the inspiration enjoyed by all the majority judges, or only by the odd man? And why should a judge who has proved a worthy vessel of divine inspiration one day be turned away unfilled another day?"

Common Notion #2: The Supreme Court has the exclusive right to interpret the Constitution

Some congressmen claim they cannot enact a statutory remedy to a problem because it might be ruled unconstitutional by the Supreme Court. This is often an excuse for inaction which congressmen and senators use to deflect responsibility from themselves. For when congressmen want to act, considerations of unconstitutionality yield to the member's desire to share with the Supreme Court the exclusive right to interpret the Constitution.

Look at the following April 13, 1965, Congressional Record. It's a Senate debate on the constitutionality of an amendment to the Voting Rights Act, which prohibits state poll taxes as a condition for voting:

"Congressmen and Senators have not abandoned judgments on constitutionality of statutes to the Supreme Court . . . We should not refuse to pass a needed law merely because the court might not uphold it. Moreover . . . a constitutional issue on which Congress has declared its will comes to the court on much stronger grounds than when Congress has not acted. A court which may have avoided, or ruled adversely, on a constitutional issued raised by a private citizen looks at such a statute in a fresh light when the issue come before it clothed with the strength of congressional policy."

That speech was given by Sen. Edward M. Kennedy.

Furthermore, the acknowledged "Father of the Constitution," James Madison, while a congressman, pointed out during congressional debate establishing the State Department "that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority."

Thomas Jefferson, writing to Judge Spencer Roane in 1819 also said, in part:

"My construction of the Constitution is . . . that each department is truly dependent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted for its action."

And, in 1936, Professor Corwin wrote: "Congress and the President are vested not only with the power but with the duty to read the Constitution for themselves . . . They are entitled to consult the opinions of the Court on particular questions of constitutional power . . . For all that, they are not entitled to abdicate their own official function of independent judgment on the plea that such opinions are the authentic Constitution."

Does the Supreme Court have the final right to decide the constitutionality of cases and decisions? James Madison wrote in a 1788 letter:

"In the state constitutions and, indeed, in the federal one also, no provision is made for the case of a disagreement in expounding them (the laws); and as the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper."

President Lincoln also disputed whether a Supreme Court decision settled a constitutional question. In his first inaugural address, he stated: "If the policy of the government upon vital questions is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this any assault upon the Supreme Court or the judges."

And yet, former president of the American Bar Association, David R. Brink, warned that legislation in Congress that would remove the jurisdiction of the federal courts over abortion would threaten "the Constitution as the supreme law of this land, and if we lose that, we lose our system of government."

Robert G. Marshall has been a member of the Virginia State House of Delegates for the past 13 years. This article is an edited version of an article that first appeared in Levers of Power, Vol. 1, No. 1, in November 1982.

© American Life League

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