Ivan W. Parkins

To order Dr. Parkins book,

 Perspectives For American Society  

Contact

info@americanpoliticalcommentary.com

©Ivan W. Parkins 2009,  All articles, text, web pages property of Ivan W. Parkins.  Use of any material requires permission of the

author and can be obtained by contacting, info@americanpoliticalcommentary.com

About Ivan W. Parkins:

Dr. Parkins is a retired professor of Political Science from Central Michigan University.  He received his PhD from the University of Chicago and is a graduate of the United States Naval Academy.  Dr. Parkins served as a naval officer during WWII aboard the battleship Alabama.  He is a recent widower with three daughters, 3 grand children and 2 great grand children.  Dr. Parkins has written extensively, having authored 3 books and a newspaper opinion column for many years. 

Front Page

Editors Note:

Dr. Parkins’s Grandson, Breton W. Hinkle, passed away unexpectedly on Feb. 14, 2009.  He leaves his wife Jen, parents Ray and Susan Hinkle, sister, Gretchen Hinkle, Richard and Kathy Bourque, Father and Mother in law, brother in laws Kevin and Brian and sister in law, Kelly.  He was a graduate of Michigan State University.  Bret was a United States Marine and had faithfully served his country with honor and distinction.   He will be terribly missed  by family and friends.  He was loved by all who knew him.  He was  buried with military honors in Holland, MI.   See Bret’s life story at http://www.lifestorynet.com/memories/45526/ 

                                                                                                                                               WHAT IS THE PROPER ROLE OF A SUPREME COURT JUSTICE?

By Ivan W. Parkins

 

     The need to choose a successor to Justice Souter makes especially pertinent, again, the question of a proper role for Supreme Court Justices.  And, how that question is answered   may evoke another question, i.e. why should Justices serve for life? 

         President Thomas Jefferson and his Anti-Federalist/ Democratic Republicans were long frustrated by the fact that President Adams’ last-minute appointee, John Marshall, sat as Chief Justice for over thirty years.  The Court under Marshall’s leadership interpreted the Constitution as authorization for a vigorous national government.

     Was that federal government too vigorous?  Remember that it took more than seventy years plus a bloody Civil War and Constitutional Amendments to decide the slavery issue.  And, even then, it took another century to make racial equality a vigorous American policy.  Also, the Constitution itself provides, in Article V, means for its own amendment.

     Formal amendment of the Constitution is difficult and time consuming.  Do we really want changes in the form of our government and liberties to be the products of one brief popular majority?  Actually, unpopular Supreme Court decisions have often been changed in time as new Justices have been appointed to the Court.

     John Marshall sat through about two months of lectures on the law at William and Mary College.  Topics were arranged alphabetically, and Marshall attended until somewhere in the “Ls”.  He then apprenticed in a law office.  He was later elected to Congress and served in the Department of State.  Today, Justices are usually products of a four year college program plus three in an elite law school. Prior to WWII their predecessors were largely corporation lawyers, and often reflected that background.  Now, they come mostly from educational backgrounds, bureaucracies, and experiences that are very similar to those of leaders of the political action groups who press cases before them. How effective are they likely to be at reigning in excesses of the new information elite? 

     Should the role of Supreme Court Justice be one of deciding cases according to the rules as they were at the time of the dispute?  Or should it include looking for new rules as a means of deciding old conflicts?  And, if the latter, why appoint them for life?  Life time appointments for rule makers is almost the definition of authoritarianism. 

Letter to the editor;

THE WALL STREET JOURNAL

unpublished 7/31/98

 

 

     Your July 31 editorial “Justice Thomas’s Speech” is a first-rate treatment of the contemporary scene, but much too conventional regarding the history and theory of free speech.

 

      Our Founding Fathers, i.e. the First Congress led by James Madison, offered a formula for representation ratios as the first amendment.  It remains unratified.  Their second proposal was recently ratified as the Twenty-Seventh Amendment.  The amendment which is now accepted as the first was third among those originally proposed.

 

       The screaming students whose behavior is rationalized as a manifestation of free speech owe more to psychology, the popularizing of self-expression long after the Founders became “dead white males,” than to anything venerable.

 

        Participation of the public in political dialog is the original, and still essential object of free speech.  And, the Founders’ first proposal, keeping representation ratios at a level which facilitates one-on-one communication between voters and their Representatives, may still be a vital element of that.

CREATING LIBERTIES?

A reprint of a columnTHE MORNING SUN, 1/14/82

By Ivan W. Parkins

 

 

     Unlike our Constitution, that of Britain is not a single document enforceable in court.  The British people accept a collection of documents and traditions as basic rules of their public life.  British constitutionalism is self-enforcing.  It is an important constituent of the tolerance and civility which have long characterized British public life.

 

     Although our Constitution has always been a legal document, and to a large degree enforceable in court, its strength and its value rest in large part upon the extent to which Americans revere it and apply it voluntarily.  Applied in such a manner, the Constitution supports and is supported by tolerance and civility.

 

     Unfortunately, some Americans have come to regard the Constitution as just another instrument in our adversary system of law.  For attitudes of tolerance and civility they substitute moral indignation and recondite dogma regarding individual rights.

 

      Fortunately, the dangers and causes of recent constitutional trends are becoming more widely recognized.  Archibald Cox in his recent book FREEDOM OF EXPRESSION laments the growing fragmentation of opinions from the Supreme Court.  He also suggests a cause.  He notes “the increasing use of law clerks who write opinions to justify their Justices’ votes.  Because each Justice has a number of law clerks and typically none serves more than one or two years, a heroic effort by a Justice would be required to impart unity of philosophy and authorship to the law clerks’ drafts.” 

 

      Law clerks, incidentally, are usually selected from among the most recent graduates of the Justices’ law schools.

 

      Do we really want our constitutional liberties to be defined by the processes recently employed?  If they continue to be defined in such a manner, is there any reason to believe that they will be respected?

Letter to the editor;

THE DETROIT NEWS,

 published  6/18/95

 

 

     Thank you for publishing Thomas Sowell’s topical criticisms of the U.S. Supreme Court.  (“High court turns 10th Amendment upside down,” May 29.)  But let me add a few points of background.

 

     First, the Constitution leaves to Congress the power to create the lower federal courts, to regulate both their jurisdictions and the appellate jurisdiction of the Supreme Court, and to determine how many justices the Supreme Court shall have.

 

     Second, the federal judiciary’s decisions invalidating or prescribing acts of other officials on constitutional grounds have increased greatly in this century, especially since WWII.

 

      Third, prior to WWII, Supreme Court decisions holding that broad and popular acts were unconstitutional seldom prevailed.  Popular sovereignty in the form of constitutional amendments, renewed legislation, changes of court membership, etc. quickly overcame them.

 

      It is only quite recently, when some members of the judiciary became indistinguishable from the other political activists whom Sowell calls “the anointed,” that the federal courts have been able to thwart in major and lasting ways the will of the American people.  The emergence of the mass media as a potent instrument of political influence and the alignment of most of the media establishment with “anointed” members of the judiciary is, I believe, the best explanation of the change.

Letter to the Editor;

THE WALL STREET JOURNAL

unpublished 4/4/07

 

     Your “Jolly Green Justices” and their afflatus reek from the partisanship of another constitutional branch.

 

     Of those five who were the majority, three were nominated by Republican Presidents.  All were confirmed, however, by Senates in which Democrats held majorities.

 

     All four of the dissenters were nominated by Republicans, and three were confirmed by Republican Senates.  Only Justice Thomas achieved confirmation by a Senate in which the Democrats held a majority of seats.  That Senate approved Thomas by 52-48, not long after awarding Souter 90-9.

 

     Confined by influenza, I watched, on television, the Senate Judiciary’s hearings on Thomas. One reason for hope is that, after such a vicious public beating, Thomas still believes constitutionalism to be worth the cost of its defense.

 DO WE BELIEVE IN

 CONSTITUTIONALISM?

 

     The basic idea of constitutionalism is that the method of selection of officials and the powers allotted to them, as well as the rights of individual citizens, should be so lasting that they can only be changed by processes more careful and widely acceptable than the ordinary practices of governing.  I.W. Parkins

    

     The following articles relate to the constitution, supreme court and the selection of a new supreme court justice.

Letter to the Editor;

 U.S. NEWS and World Report

Unpublished 7/29/97

 

     The late Justice William Brennan’s attitudes (obituary, August 4) regarding fairness were similar to those which I expressed in my major piece of campaign literature, 1954, while seeking (unsuccessfully) a Democratic nomination to Congress. . . .

 

      Among the greatest of his innovations was establishing welfare as entitlement, a constitutional right.  In his GOLDBERG V. KELLY opinion, 1970, the key case, he acknowledged a debt to Professor Charles Reich of Yale Law.  Reich had argued, in review articles, for such a right to welfare benefits.  Reich is better known, however, for his GREENING OF AMERICA, also in 1970, a text of the youth rebellion, and one in which he acknowledges his debts, not to our founders and political history, but to Karl Marx, Professor Marcuse, and some writers of contemporary fiction.  Justice Brennan was a man of his time; it is less clear that he saw the value of continuity with the past, a basic principal of constitutionalism.

 

      What may be least understood by most Americans about Brennan’s judicial activism is its unique record of survival.  As Professor Robert Dahl of Yale (political science) discovered, nearly all major judicial conflicts with the legislative and executive branches prior to Brennan’s time were soon resolved in favor of the elective branches.  Only more recently has the U.S. Supreme Court made numerous broad and lasting decisions which became the policies of our government. Why; why now?

 

       The answer, I believe, lies in the development and influence of the mass media, especially television.  Alexander Hamilton’s famous prediction that the judiciary would always remain the weakest branch of our government, because it controlled neither the purse nor the sword, is invalid.  The media have become a major, if not the greatest, instrument of raw power.  During most of his long tenure on the Supreme Court, Justice Brennan was in step with the media.