The citizens of the United States, slowly and steadily over time, write and rewrite the Constitution as we vote in Presidential elections. At a time of great social and political ferment when the Supreme Court is evenly divided along political and ideological grounds, a single Presidential election can result in revolutionary changes to the meaning of the Constitution. The 2008 Presidential election is the fulcrum upon which the Supreme Court now rests, and the outcome of this election will determine how the Constitution will be interpreted for another generation.
The Constitution essentially comprises the fundamental American values – it embodies our visions of liberty, equality, fairness, and self-government. How free and how tolerant we are depends in large part upon how the justices of the Supreme Court understand these values. The American people influence this process in Presidential elections, in which the candidates typically articulate competing visions of these fundamental values.
The last time this nation stood on the brink of such revolutionary change was 1936 when Franklin D. Roosevelt was running for a second term. In his speech to the Democratic National Convention, Roosevelt issued a challenge to his opponents on Constitutional grounds, and in that election he battled not only the Republican Party and the monied interests but the Supreme Court as well. He said:
These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for. Now, as always, they stand for democracy, not tyranny; for freedom, not subjection; and against a dictatorship by mob rule and the overprivileged alike.
Roosevelt won that election, and over the next few years he appointed eight justices to the Supreme Court who radically changed the meaning of the Constitution. Prior to 1937 the Court protected property rights. After 1937 it protected human rights. Before 1937 the Court was hostile to the rights of African-Americans and other racial and ethnic minorities. After 1937 the Court became the protector of these classes. Before 1937 the Court had not decided a single case in protection of freedom of religion. After 1937 it embraced the principle that government must be neutral with respect to religion, and has since vigorously struck down laws and official policies that either endorse or hinder religion. Before 1937 the Supreme Court had never recognized the existence of any unenumerated rights, despite the clear language of the Ninth Amendment indicating that such rights exist. After 1937 the Supreme Court acknowledged that there are a number of personal and intimate choices that individuals have the right to make for themselves without the interference of the government, including the right to decide whom to love, live with, and marry, as well as whether to have and how to raise children, and, finally, the right to refuse lifesaving medical treatment.
Justices Antonin Scalia and Clarence Thomas have expressed their opposition to many of the constitutional rights which were recognized by the Roosevelt Court and strengthened under the leadership of Chief Justices Earl Warren and Warren Burger. Chief Justice John Roberts and Justice Samuel Alito appear to be in agreement with the positions taken by Justices Scalia and Thomas. If one more like-minded justice is added, they will be able to roll back many of the changes in constitutional interpretation triggered by the watershed election of 1936.
[This is the first of ten posts in which I describe how the interpretation of the Constitution will change depending upon the outcome of the 2008 Presidential election.]
{ 6 comments… read them below or add one }
The notion that one or two more Justices of the Scalia-Thomas mindset may be appointed to the bench if McCain wins the election is very scary – and all too real given the ages of Justice Stevens and Justice Ginsburg.
Have any scholars seriously investigated the ethical questions raised by the Court's decision in Bush v. Gore?
I am certain that Rehnquist knew that he was probably going to leave the Court during the next president's term in office.
Who knows what SCOTUS would look like today had that case been decided the other way…
It is a shame that the very scholars that teach us tolerance have very little themselves.
Everyone has a right to their opinion Mr. Sessions, but it would probably be more helpful (and insightful) if you were to elaborate, rather than leave a snarky one line comment.
Dan- given McCain's public statements, it's quite unlikely that he would appoint someone that resembles Scalia and Thomas. While they're repeatedly bashed for being pro-government, their originalist/strict constructionist approaches have vastly expanded the rights of defendants over the last few years. McCain is more likely to appoint someone in the mold of Alito or Roberts. Still conservative no doubt, but not in the mold of Scalia or Thomas.
I suggest the statement you made: " The last time this nation stood on the brink of such revolutionary change was 1936 when Franklin D. Roosevelt was running for a second term" In fact we were on the brink of revolutionary change in the 1933 business Plot when corporations planned their coup to take over FDR and the Whitehouse. Gen Smedley Butler was to lead this coup with 500,000 national guardsmen. However, Butler found out the CEO's Dupont, Morgan and others were fascists and he reported the coup to the committee on unamerican activities. Today's free market coup continues. The US archives on congressional hearings have been unsealed this year.
I'm glad Emma has mentioned Gen. Smedley Butler. Google search for Butler's treatise "War is a Racket." A read that is more relevant today than ever.