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The Supreme Court at the Tipping Point – Be Sure to Vote

by Professor Will Huhn on September 2, 2008

in Civil Rights,Constitutional Law,Government,Political,Wilson Huhn

     Between 1937 and 1943 President Franklin D. Roosevelt appointed eight justices to the Supreme Court. These justices, who included Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson, changed the meaning of the Constitution. For the first time in American history the Court began to systematically protect the rights of individuals and minority groups against government action. In particular, the Supreme Court established doctrine protecting the separation of powers, freedom of speech, freedom of religion, racial equality, and the right to privacy. In recent years, however, the legacy of the Roosevelt Court has come under attack, and the fundamental constitutional framework established by the Roosevelt justices may be in danger of unraveling.    

     For over eleven years between 1994 and 2005 the make-up of the Supreme Court remained stable, but during his second term in office President George W. Bush had the opportunity to appoint John Roberts and Samuel Alito to the Supreme Court. These two conservative justices have moved the Court closer to a tipping point than it has been in over seventy years. The 2008 Presidential election, in which the candidates offer the American people starkly contrasting social, economic, and political viewpoints, will have a substantial effect on how the Constitution will be interpreted. The following questions may be determined by the outcome of this election:

1. Will the Supreme Court overrule Roe v. Wade and allow the government to outlaw abortion at all stages of pregnancy?

2. Will the Court overrule Lawrence v. Texas and allow the government to imprison people for engaging in same-sex intercourse?

3. Will the Court reject the Right to Privacy altogether, including the right to refuse lifesaving medical treatment (commonly called the "right to die")?

4. Will the Court overrule United States v. Virginia, which ordered women to be admitted to V.M.I. on an equal basis with men?

5. In Equal Protection cases generally, will the Court adopt a standard based upon tradition rather than upon a realistic assessment of human potential?

6. Will the Court overrule Grutter v. Bollinger and declare affirmative action to be unconstitutional in virtually all circumstances?

7. Will the Court overrule McConnell v. F.E.C. and to strike down all laws that limit the amount of money that people may contribute to political campaigns?

8. Will the Court overrule McCreary County v. A.C.L.U. and instead find that it is constitutional for the government to post the Ten Commandments in courthouses?

9. In general, will the Court reject the principle that the government must be neutral towards religion, and instead adopt the rule that the government is free to endorse religion?

10. Will the Court decide that the Establishment Clause does not apply to the states, thereby allowing the states to establish official churches?

11. Will the Court overrule Boumediene v. Bush and instead rule that prisoners who are held at Guantanamo Bay are not entitled to habeas corpus?

     On most of these issues the Supreme Court is closely divided, and the addition of one or more justices will determine the outcome. Some people criticize the fact that a Presidential election can determine how the Constitution is interpreted. They contend that the meaning of the Constitution should remain static until it is amended, as if the Constitution were a statute or an administrative regulation. There is merit to this argument, but as a practical matter the meaning of the Constitution is dependent upon the will of the American people as expressed in national elections.

     If you feel strongly about what the meaning of the Constitution should be on these or other issues, then you should be sure to vote on November 4.

Wilson Huhn is a Professor of Constitutional Law at the University of Akron School of Law.  This is the last of a series of ten essays regarding how the 2008 Presidential election may affect the interpretation of the Constitution.

{ 21 comments }

BBQ Man September 2, 2008 at 12:48 pm

Edit to the Huhn Bio…

Wilson Huhn is a Left Wing Liberal Professor of Constitutional Law at the University of Akron School of Law. This is the last of his scare tactic series of ten essays regarding how the 2008 Presidential election may affect the interpretation of the Constitution.

The Reverend September 2, 2008 at 3:09 pm

Quite the rebuttal. Impressive.

Of course, the threat to our nation that Pro. Huhn lays down, still remains a threat.

BigHappy September 2, 2008 at 3:18 pm

Wierd title…Left Wing Liberal Professor of Constitutional Law.

In any event, all the above could and likely would be affected by the outcome of this election.

Partial Shade September 2, 2008 at 10:44 pm

First, as I recollect, Prof. Huhn is intelligent and thoughtful scholar. I hesitate to use labels such as liberal and conservative right wing redneck to describe philosophies; but if I do so in any discourse here, it is for the sake of convenience only. The true threat, as with all federal elections, is that we will continue down the path of the last seventy some years.
I was born in a republic, a democratic society. Why anyone who supports democratic principles would champion a system where nine unelected, lifetime office holders reign supreme is beyond my comprehension.
If we want to see something done, we the people, should have the power to pass a law. If we wish to stop something, we the people, should have the power to pass a law.
Expanding the Commerce Clause during the late 50's was a perversion of the Constitution. However, the denial of another citizen the same rights and privileges afforded to to all others rises to such a level of injustice, that when "we the people" fail to act, the Court must be forgiven for its abuse of power and deviation from Constitutional principle. Such abuse should be few, limited and (when "we the people" through our representatives act responsibly) unnecessary. Even when "we the people" fail to act, it should be used sparingly. It has not been. Although I am still in awe of J. Douglas' rational in Griswold, it is nothing more than a masterful magician's slight of hand—smoke and mirrors. Such rulings demean the importance of one races' right to be treated equally to all others, effectively putting that principle on equal footing with the "right" to a condom. Personally, I want access to a condom or abortion etc. by choice, by statute- not by decree of the nine.

Partial Shade September 2, 2008 at 10:53 pm

My apologies if my answer is a bit choppy. I did not know responses were limited in length–so big time editing Sorry J. Marshall, you got cut with the rest.

Partial Shade September 2, 2008 at 11:20 pm

I'm sure I'm violating some posting rule, but there is one edit I wanted to put back in.
Prof Huhn repeatedly states "…and allow the government…" To quote (ok, paraphrase as I cannot remember word for word) the great thinker Pogo, "We have met the enemy, and they are us." I may be mistaken, but I thought we were the government.
I'll refrain from adding anymore of my edits here and cease from anymore chain replies

Partial Shade September 3, 2008 at 7:53 pm

I fear the edit of my reply left it a bit too simplistic. With the right to "think what you wish and to say what you think," comes a responsibility to think before you speak.

Dan S. September 4, 2008 at 3:24 pm

RE: "Some people criticize the fact that a Presidential election can determine how the Constitution is interpreted. They contend that the meaning of the Constitution should remain static until it is amended,…" AND "…as a practical matter the meaning of the Constitution is dependent upon the will of the American people as expressed in national elections."

Yes, I still object to the idea that popular politics holds the potential for altering the established Laws of the Land. It's like a charismatic religious zealot rewriting the Ten Commandments to fit his/her own agenda. I feel campaign issues should be limited to topics that have a working lifespan of 4-8 years. The ‘meaning ‘ of the Constitution should remain constant UNLESS there is such a drastic change of circumstances that the majority of the States see fit to alter it.
Professor Huhn, thank you for the considerable thought and skill you put into your essays. They (and the related posted comments) certainly helped me view the topics with more perspective. I hope you will continue your contributions at the Café.

jimmy james September 4, 2008 at 3:40 pm

Conservatives have been on the one wrong side of history, dating back to the founding of America, when the original conservatives, the Tories, backed England.

Via http://www.straight.com/node/153663:

No matter how unjust, unfair, cruel or despicable the situation, conservatives have always been there to defend the status quo.

Here's a shortlist of the changes conservatives have opposed (and often fought tooth and nail against) over the years, sticking for the moment to the West and, specifically, America.

— The end of slavery

— Women being granted the legal status of equal human beings and no longer being considered the property of their husbands or fathers

— Women being given the vote

–The end of racial segregation

— The introduction of universal health-care and other social programs

— The introduction of the Pill

— The repeal of laws that legally allowed men to beat, and rape, their wives

— The decriminalization of homosexuality; that is, the end of criminalizing 10% of the population for simply being who they are

— The legalization of inter-racial marriage

Partial Shade September 4, 2008 at 6:21 pm

Then could/should we use the terms "activist" and "constructionist" rather than "liberal" and "conservative" to clarify our differences in this discussion?

But that is not why I post again. I'm offended (and we demean this line of discussion) when we attack the writer rather than argue the merits of their position. I strongly disagree with the position that Prof. Huhn has chosen to champion, but as I said, I remember him as intelligent, thoughtful and extremely knowledgeable. I certainly wouldn't challenge him in a debate where he took the "strict constructionist" position and I took the "activist" position in a debate and I wouldn't recommend that to any of you that have chosen to demean him personally rather than engage in the argument.

(I have just now discovered that reply space is NOT limited–I must have encountered a bug.)

C. David September 5, 2008 at 9:25 am

I am extremely worried about how our constitution will interpreted. The last people I want interpreting it are socialists and far-left liberals. I will not be voting for a token, feel-good candidate that has no place attempting to address a future cold war with Putin and Medvedev. Obama may be an eloquent speaker with a teleprompter, but then again, so was the Austrian Painter that ruled Germany.

ACLU needs to represent all amendments equally, or they should be dissolved. U.N. needs removed from U.S. soil, and more importantly, liberal Profs. need thrown out of our colleges.

And, for what it is worth. I am pro-environment, pro-education, pro-gay rights, pro-gay marriage, pro-early term abortion, pro-RU486, pro-women's rights, pro-gun, pro-self defense, and anti-war.

We do not need bi-partisan politics, and lop-sided Supreme Courts in this country. We need Balkanization.

Professor Will Huhn September 5, 2008 at 10:49 am

I want to thank all of you for your comments, and especially for the discussion that has been generated among you.

Whether you are a liberal or a conservative, I believe that you all agree that this particular election will have a profound effect on the interpretation of the Constitution. No matter which set of social values you are devoted to – pro- or anti-abortion, pro- or anti-gun, pro- or anti-gay rights, pro- or anti-gender equality, pro- or anti-separation of church and state, be sure to vote.

I know that it is undemocratic for unelected judges to be able to frustrate the will of the majority and to strike down laws as unconstitutional. But that is the entire point of constitutional law. Constitutional law becomes significant as soon as some elected official or institution transcends its boundaries – a school board, state legislature, administrative agency, even a President is bound to follow the law as set forth in the Constitution, and when a teacher is fired or a law is adopted or a citizen is punished or other action is taken by government that violates the Constitution, the courts have not only the power but the duty to prevent it. Constitutional law is, by its very nature, undemocratic.

The reason that this occurs is because our fundamental rights are, as the Declaration of Independence says, "inalienable," meaning, they cannot be given away. We cannot give up these rights. They are inherent in us. No government is permitted to infringe or abrogate these rights. Of course, we disagree profoundly about what exactly those rights are, but as Americans we all believe that these rights exist and that the government may not trample them – even a popularly elected government.

As for my personal values, I am liberal on many subjects and conservative on many others. Whatever my beliefs, however, I think that it is important to remember that we must respond to the legitimacy and persuasiveness of other people's arguments rather than to simply categorize the arguments or demonize the other person. Aristotle teaches us that ad hominem arguments are fallacies – that personal attacks are irrelevant. The proper response to a personal attack is as follows: "I cheerfully concede (for the sake of argument only) that you are my superior morally, intellectually, and hygenically! Now may we proceed to a discussion of the merits of my argument?" I disregard overgeneralizations and personal attacks.

Next week I will start a series in which I will attemp to explain how people of good faith, who are well-informed, intellectually honest, and devoted to American principles, can come to radically different conclusions about the meaning of the Constitution. In light of this string of comments, it seems to be an especially appropriate subject. Again, thanks for reading!

Let's be honest September 5, 2008 at 12:23 pm

"As for my personal values, I am liberal on many subjects and conservative on many others" — PLEASE SHOW YOUR SUPPORT FOR SUBJECTS THAT YOU LEAN CONSERVATIVE ON – YOU HAVEN'T SO FAR…

"Next week I will start a series in which I will attemp to explain how people of good faith, who are well-informed, intellectually honest, and devoted to American principles, can come to radically different conclusions about the meaning of the Constitution" — WILL THIS SERIES BE LACED WITH KEY WORDS AND PHRASES INDICATING THAT THE CONSERVATIVE VEIWPOINT IS WRONG LIKE THE FIRST SERIES? IF SO, CUT THE BUSINESS ABOUT BEING FAIR AND BALANCED AND JUST COME OUT AND DECLARE THAT YOUR SERIES COMES FROM THE LIBERAL POINT OF VIEW. NOTHING WRONG WITH THAT. JUST BE HONEST.

The Reverend September 5, 2008 at 5:39 pm

Interesting to note jimmy,….at your link. Conservatism is explained, as The Reverend has also explained it, as a form of mental illness. What else could explain being on the wrong side of ALL those issues?

Partial Shade September 5, 2008 at 6:21 pm

Allow me to try to clarify. I do not wish to limit the breadth of the discussion; however, my issue with many of the holdings of SCOTUS over the last say 50 years (70 years per Prof Huhn) is not necessarily with the result, but more with the means. Why has the Court shown so little respect for the concept of judicial restraint? Not to trivialize my point, but it appears that during these years the Court's rational has been to use the "six degrees of constitutional law" (e.g. Griswold – for reference, see "Six degrees of Kevin Bacon")
Prof Huhn states (if I read correctly) that the justification lies in the concept of "inalienable rights"
-"[t]he reason that this occurs is because our fundamental rights are, as the Declaration of Independence says, "inalienable," meaning, they cannot be given away. We cannot give up these rights."
Did we give up no "inalienable" rights in order to form this government? Maybe not.
This may be the true center of my disagreement. Is it accurate that we cannot give them away or just that they cannot be taken without our consent? Has SCOTUS so interpreted our constitution as to deny us what I evidently in error consider an "inalienable right" — or have they only denied us any method to do so?

Gaston Sauer September 6, 2008 at 4:26 am

Huhn,

Quote: "Aristotle teaches us that ad hominem arguments are fallacies – that personal attacks are irrelevant. The proper response to a personal attack is as follows: "I cheerfully concede (for the sake of argument only) that you are my superior morally, intellectually, and hygenically! Now may we proceed to a discussion of the merits of my argument?" I disregard overgeneralizations and personal attacks."

My god, will you quote Freud, next?

I was liberal once. Then I left the campus, and obtained a real job.

Jill September 6, 2008 at 10:23 am

Thanks for an interesting series. I look forward to the next batch.

Dave September 6, 2008 at 3:15 pm

I agree with the premise of your article. The next president has the potential to change the court. But this is always the case. Republicans have held the presidency for 70% of the last 10 terms. But the Court does not have a strong conservative slant. Arguably it is a Liberal court. You lost me after that. Is there really a movement to overrule US v Virginia?

For every Clarence Thomas that scares one side there is a Ruth Bader Ginsburg that scares the other side.

While I do not agree with personal attacks, the rulings that you suggest may be in danger of being overturned reveal your political views.

Why not suggest that the Court could overturn Gratz v. Bollinger which found it acceptable to use a persons race to while deciding college admissions.

Or even reword one of your choices. The Court could overrule McConnell v. F.E.C. and to strike down all laws that limit free speech by limiting the amount of money that people may contribute to political campaigns.

Interestingly enough, you bring up the importance of constitutional law when a government entity transcends its boundaries. Where is the protection from the court transcending its boundaries?

Nathan September 17, 2008 at 9:47 am

Gaston,

What exactly is wrong with quoting Aristotle? Further, what does Freud have to do with Aristotle? The point to the quote is that rather that say "Will Huhn is a left wing professor" you should refute his actual arguments. Instead of complaining about what is views are, take the opportunity to show us why you think he is wrong.

For example "I was liberal once. Then I left the campus, and obtained a real job." As fascinating as this statement is, it adds nothing to the discussion. How does this impact Huhn's argument? If the 'liberal' position of Huhn is so faulty, why don't you enlighten us as to the faults in Huhn's arguments?

Finally, you're statement that you were no longer liberal once you obtained a 'real' job, I am not sure what this means or has to do with anything. If your assertion is that the 'liberal' ideology consists of only those that have had a 'real' job, I think your premise is grossly inaccurate. Specifically to the point here, I believe Professor Huhn has an extensive work history before becoming a professor. Thus, your apparent argument that Huhn does not understand the real world because he does not have a 'real' job is, again, quite inaccurate.

While I think I would disagree with your arguments, I implore to specifically refute Huhn's arguments, rather than his perceived ideology, so that we can have a useful discussion of the issues, rather than simple name-calling.

Alice September 22, 2008 at 11:33 am

Please tell me how to find the essays number 1, 2, 3, and 9. I have printed out the rest and have them in a notebook…would to complete this series and read it consecutively….Thank you…..Alice

Professor Will Huhn September 22, 2008 at 3:04 pm

Alice,
My name is listed as one of the categories – all of my posts are collected there. Again, thanks for the encouragement!

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