July 1, 1863, a 155 years ago today, the Battle of Gettysburg began. The battle would last three days (July 1 – 3). It would be the bloodiest battle of the entire Civil War, with upward estimates of 51,000 casualties between the two armies. It was the beginning of the end for the Confederacy, and from Gettysburg’s blood soaked fields, a nation would seek “a new birth of freedom.”
Abraham Lincoln’s words have always stuck with me:
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.
Some years ago—the early 1990s—my job entailed periodically listening to Congressman Charles Taylor give after hour tours of the Old Supreme Court Chamber to small groups of his constituents. The congressman enjoyed talking history and, being a lawyer himself, seemed especially engaged during his old court tours. The most interesting part, I thought, was when the congressman discussed the supreme court’s Marbury v. Madison (1803) opinion, which established the supreme court’s judicial review authority.
Congressman Taylor would point to the chief justice’s chair and say something to the effect of: “It was here in this room, over there in that chair, that Chief Justice John Marshall said, ‘It is emphatically the province and duty of the judicial department to say what the law is,’ thus establishing the court’s judicial review authority.” It wasn’t my place to get involved, but this was the part in his tour where I wanted to raise my hand. So you understand, the U.S. Constitution didn’t explicitly say the supreme court had the right or power of judicial review. No, Chief Justice Marshall, unchallenged by the Congress, basically seized that authority. Bloviate as some lawyers may, and do, the Founders did not grant this authority to the high court. And for good reason…I would argue.
The high court’s majority renders its “opinion.” Oftentimes the court’s minority (or dissenting) opinion is just as valid and equally well argued. They just got outvoted, that’s all. And true to form (human nature), many times the opinions of each justice aligns—oh so conveniently—with their perceived political ideology. This is especially true—though admittedly, not always—in big cases, involving hot political topics. On top of that, members of both political parties will openly praise or condemn justices appointed by their party if that justice has or hasn’t pulled the party line during a big court decision. No hiding the expectations in other words.
Much to the contrary about justices being “objective” and “just enforcing the constitution,” the members of the Senate like to appoint justices, naturally, that further their party’s political ideology. For me, the simple truth is the supreme court is mostly just another political body—but, unlike the other two branches, an unaccountable one. For smaller cases, where there’s little political significance, the justices will tend to be more judicious. But in larger cases, where big political stakes involved, the justices decide mostly inline with their politics. Like everyone else the justices are human and so their motives are never truly pure. As William James wrote: “Human motives sharpen our questions, human satisfactions lurk in all our answers, all our formulas have a human twist. . . . The trail of the human serpent is thus over everything.”
Since judicial review is based on precedence, and not a provision specifically enumerate in the U.S. Constitution, the Congress could, if they were so inclined, enact a law stripping the high court of this final authority. The court could do nothing about it. The supreme court should function as the last stop in the federal appellant court system. But in certain cases, to use Lincoln’s words, where “vital questions” are at stake, the U.S. Congress should have the final say. The American people, through their elected representatives, should, in my view, have the final say in such legal cases the U.S Congress deems of vital importance. If it were my decision you’d have a law that requires a super majority of, say, 60% in the affirmative in both Houses of Congress to override the high court’s opinion. I think there’s a fair argument for a simple majority, but to provide for some buffering (to retrain abusers) I would recommend a super majority.
Now, if you disagree with me I welcome your opinion. But just consider some of the horrid opinions rendered by the supreme court. We’ve been forced to live with those “opinions” from unelected and unaccountable judges. All of whom, by the way, have lifetime appointments. Consider that since 1790 we’ve had only 1 of 113 supreme court judges appointed face impeachment…of which he was acquitted. So no U.S. Supreme Court justice has ever been removed from office. Think about that. That’s a lot of power and security handed to 9 very fallible and opinionated people that will (and have) ultimately impress their values and opinions, whether we like it or not, on the rest of us—a nation of hundreds of millions of people.
I respect the high court’s opinion, but I think the opinion of “the people,” via their elected representatives, will be just as equally and lawyerly argued and just as equally bias as the high court’s; except that those deciding, unlike the justices of the supreme court, will be democratically elected and accountable for their vote. Where “vital questions” are at stake the American people, in my view, should be their own rulers.
As you’ve seen from the quote above, I’m not alone in my concerns about the power and potential abuses of the U.S. Supreme Court. Besides Abraham Lincoln having serious concerns, Thomas Jefferson, in a letter to William Jarvis, also voiced a strong rebuke of the supreme court’s oligarchic power grab:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. (Bolding added).
Thomas Jefferson was right.
This book is a portrait of hours in which the politics of fear were prevalent—a reminder that periods of pubic dispiritedness are not new and a reassurance that they are survivable.
I am writing now not because past American presidents have always risen to the occasion but because the incumbent American president so rarely does.
— Jon Meacham
I recently completed Jon Meacham’s new book, The Soul of America: The Battle for our Better Angels. An instant New York Times bestseller, it is, for various reasons, a very timely book for these very challenging—sometimes soul crushing—and chaotic times. As a historian, Meacham takes a look at the past—from the American Civil War to the Civil Rights era—in order to provide an informed (more hopeful) perspective about the possible trajectory of our turbulent times. In some sense, Meacham’s book is mental therapy; it’s meant to talk you off that ledge.
Meacham looks at some of the great American social struggles—i.e. the civil war, rise of the Klan, women’s movement, the civil rights era, etc, etc,—and some of the prominent people who’ve shaped our nation’s slow march toward a more (though not) perfect union. He focuses mostly on Presidents who, while not perfect, usually (until recently) used their office to lead, to unite and heal, not to divide and humiliate, Americans. With that said, Meacham’s goal is to also remind us that “the struggle is real,” that tumultuous times are more the rule than the exception, and that we must participate in our democracy if we expect hope to prevail over fear. He reminds us that the soul of America is no different than the soul of an individual. It’s a battleground of light and darkness, of hope and fear, of order and chaos. “Our fate is contingent upon which element—that of hope or that of fear—emerges triumphant.” What we pray for, and what our history suggests, is that hope will prevail over fear given enough time, visionary leadership, and activism by the people. Visionary and ethical leaders, as if we need reminding, aren’t guaranteed, but a free people who are hopeful and determined, can prevail over the forces of darkness, fear, and reaction.
Also, for those, like me, who collect quotes, I should note, that besides being a great read, Meacham’s book is worth having just for the quotes alone. The book is littered with great quotes, some I’d never seen before, by prominent people in our history.
Here is a sampling:
“Duty” is the operative word in the following quote. Duty requires one to subordinate one’s personal interests to those of the greater good, the nation, the law. Governing as if these two interests seem to always conveniently sync, is often called “corruption.”
In a government like ours it is the duty of the Chief magistrate, in order to enable himself to do all the good which his station requires, to endeavor, by all honorable means, to unite in himself the confidence of the whole people. — Thomas Jefferson, 1810
I’d never seen this one before, but it’s a damn good one, and without a doubt from my experience a rock solid truth:
Now, look, I happen to know a little about leadership. I’ve had to work with a lot of nations, for that matter, at odds with each other. And I tell you this: you do not lead by hitting people over the head. Any damn fool can do that, but it’s usually called ‘assault’ — not ‘leadership.’ . . . I’ll tell you what leadership is. It’s persuasion—and conciliation—and education—and patience. It’s long, slow, tough work. That’s the only kind of leadership I know—or believe in—or will practice. — Dwight D. Eisenhower
And wow, the following presents a honest sense of humility and the awareness of the responsibilities of power that seem almost devoid in our current President.
Well, I have been President for a year and a quarter, and whatever the future many hold I think I may say that during that year and a quarter I have been a s successful as I had any right to hope or expect. Of course political life in a position such as this one long strain on the temper, one long acceptance of the second best, one long experiment of checking one’s impulses with an iron hand and learning to subordinate one’s own desires to what some hundreds of associates can be forced or cajoled or lead into desiring. Every day, almost every hour, I have to decide very big as well as very little questions, and in almost each of them I must determine just how far it is safe to go in forcing others to accept my views and standards and just how far I must subordinate what I deem expedient, and indeed occasionally what I deem morally desirable, to what it is possible under the given conditions to achieve. . . . Often when dealing with some puzzling affair I find myself thinking what Lincoln would have done. It has been very wearing, but I have thoroughly enjoyed it, for it is fine to feel one’s hand guiding great machinery, with at least the purpose, and I hope the effect, of guiding it for the best interests of the nation as a whole. — Theodore Roosevelt
And here the great transcendentalist nails it. This quote says what the bigger, more challenging, issue really is for America right now:
The form of government which prevails is the expression of what cultivation exists in the population which permits it. — Waldo Emerson . . . Amen to that!
The forgoing generations beheld God and nature face to face; we, through their eyes. Why should not we also enjoy an original relation to the universe? — Waldo Emerson
As my last two posts have shown, I’ve been watching, and remembering, some great commencement speeches. Well here is the last one I’ll post about for this season, sent to me by a good friend, and it’s a good one.
Oftentimes the challenge you have when attempting to impart wisdom or insight is to be able do it without necessarily seeming like you’re trying to do it. This is true more so when the topic has a larger, more broader, social meaning—i.e. political meaning—and the speaker is addressing an ideologically diverse group. The master strategist knows, it’s best to avoid the direct approach and resort to oblique order.
Well, in the masterful sense, that’s what Danielle Allen does in her recent commencement address at Pomona College. It’s a short speech, and at first I wasn’t drawn in because of Ms. Allen’s very colloquial delivery, but then the message, the insight, started to hit me right between the eyes. Watch for yourself:
This, I submit, is the freedom of a real education, of learning how to be well adjusted. You get to consciously decide what has meaning and what doesn’t. You get to decide what to worship. — David Foster Wallace
It’s graduation season, and all across America graduates are listening to commencement speeches delivered by special invitees. Generally speaking, the task of a commencement speaker is to inspire graduates to go forth and make a difference in the world. This isn’t an easy task. It’s hard to strike a deep chord with a group of young graduates itching to get moving. “Attention” and “awareness” are in short supply. I suspect most graduates after, say, 10 years out of college probably couldn’t tell you who their commencement speaker was. Sure, if they attended an elite school that attracted a big celebrity maybe they’d remember that person’s name 10 years on. But even if that’s the case, how many would still remember the message? Because the “message” is what the commencement speech is really all about. The reason, I think, these speeches are so unmemorable is because the message simply didn’t resonate below the surface; it didn’t ripple the deep, still waters.
And then there are those rare speeches that, like high art, speak across time and across generations. They send wakes deep below the surface. 13 years ago today, on May 21, 2005, David Foster Wallace delivered what is considered by many one of the greatest commencement speeches recorded. With all the reports of commencement speeches in the news during this time of year, I usually revisit Wallaces’s speech. It’s good for the soul. It always repays me to hear his talk, because, like superior art, it always has something to tell me about myself each time I listen to it.
I invite you to take the 22 minutes involved and listen to this speech. I suspect you’ll be very thankful you did. It may not help you change the world, but it may help you change yourself.
If you prefer: