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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.
Inside This Issue
Page 2, Disassemble the House
Page 3, Media Bias
Page 4, Book Reviews
Page 5, War and Their Costs
Page 6, Broken Congress
Page 7, Dividing America
Page 8, Dividing America, Part two
Page 9, Disinformation, Liberal Ideology
THE CHECKERED HISTORY OF
Or How Our Constitution is Being Amended
By Ivan W. Parkins
David Easton (one of my professors and chairman of my dissertation committee) in his THE POLITICAL SYSTEM describes “ power” as being about how authoritative values are established. That provides a fruitful approach to the role of the Supreme Court in our constitutional system.
Soon after WWII, one of the first things that I was required to learn in Constitutional Law was the Ashwander Rules, rules by which the Court of FDR’s time believed its own jurisdiction to be limited. It is now difficult to find even a mention of those rules in more recent texts. And, noting the late Justice Douglas’ statement that rocks and trees should have standing to sue in court, plus the recent grant of rights by five members of the Court to enemy aliens, do some Justices recognize any limits whatever to their powers to proclaim what values are and are not authoritative?
Persons not familiar with the history of the Supreme Court’s reviewing acts of the elected federal branches are likely to be surprised by how limited that power has been until recently. It is not mentioned in the Constitution. Some Founders believed that the equal branches were equally qualified to interpret the document.
Marbury v. Madison in 1803, a decision drafted by Chief Justice John Marshall, was the first significant claim by the Court of ultimate authority over the Constitution’s meaning. Factually it was a ridiculous case. Marbury’s commission as a justice of the peace, granted by President Adams under a very recent Federalist statute, was left lying on the desk of the outgoing Secretary of State. Incoming President Jefferson’s Secretary, James Madison, refused to deliver the commission.
Marshall said that he must, but since Marbury had already taken another job and was not interested, the case was really moot. And guess who had been the “too slow” Secretary of State? His name was Marshall, and as Chief Justice he was another of the Federalists’ last-minute appointees. In one sense the decision was an empty political gesture. But, it was also a legal precedent.
It was fifty- four years later, in the “Dred Scott” case, that another Chief Justice, Tanney, claimed, for the second time in our history, a similar power to review acts of the elected branches. His majority decision that the elective branches had no power to free slaves contributed to the Civil War. That “precedent” was set aside, after great bloodshed, by the thirteenth and subsequent amendments to the Constitution, and buried in the mid-twentieth century.
During the Civil War there were several instances of the Supreme Court reviewing actions of President Lincoln and/or the Congress, but none were so prompt or effective as to interfere much with the war effort. And, soon changes in the Court’s membership reversed some of them. Gradually the Court’s use of review increased, rising to a peak in the mid-1930s when the Court declared much of the New Deal to be invalid. But most of those decisions were reversed or by-passed by changes in the Court’s membership or by redrafted legislation.
Professor Robert Dahl of Yale researched the pre-WWII history of judicial review and concluded that, in nearly all cases where the Court had attempted to invalidate acts of Congresses or Presidents regarding matters of significant value to the public, politics had soon reversed the Court. For most of its history, our Supreme Court has not been very effective in rejecting what the elected branches of our government chose as authoritative values.
Since WWII the situation has changed. The Supreme Court has become more “Supreme.” Why? Alexander Hamilton had predicted that the Judiciary would always be the weakest of our Constitutional Branches; it controlled neither the sword nor the purse.
But, are guns and money the only sources of raw power? What if the constitutionally protected information system, once small and decentralized, were to become vast and largely united? Today, that system is able to introduce, teach, and extensively to “establish” authoritative values. And what if the Supreme Court, or a majority of its Justices, were to support the values introduced as authoritative through the mass media?
Are mere voting citizens and the officials whom they elect to office capable of establishing which values are authoritative today? Who becomes President and nominates new Justices to the Supreme Court is an issue of survival for both our values and our democracy.
THE SUPREME COURT
AND THE JUDICIARY
Partisanship and Real Change
Opinion Column, 9/29/80, Mt. Pleasant, Michigan:
Will the judiciary always be, as Alexander Hamilton predicted in No. 78 of THE FEDERALIST, the least dangerous branch of government? Hamilton came to that conclusion on the basis that the judiciary has “no influence over either the sword or the purse.” His evaluation has become part of the conventional wisdom of our constitutional law. But is it still accurate?
There have been, and are yet today, numerous controversies, both scholarly and popular, over the power of our courts to invalidate acts of Congress and the President. Historical studies have established, however, that decisions of the U.S. Supreme Court, when they clashed sharply with prevailing public opinion, were usually wiped out, either by constitutional amendment, by changes in the court itself, or by some other means. Those studies may tell us little, however, about the present and the future. What if the court were to act in a more circumspect manner, and the public were not to notice? Three developments are enhancing the power of the judiciary, and invalidating Hamilton’s observations, without attracting the attention of the American public.
The first such development is the growth and concentration of much of our communication into a relative few large organizations, the mass media. While the sword and the purse may have stood apart as prime instruments of power in Hamilton’s day, the mass media must now be included. Might they not, in some combination with the judiciary, greatly enhance the power of that branch to do good or evil?
The second development is an obvious one, but its implications are no better understood than are those of the mass media. We now have, as we did not in Hamilton’s time, huge federal bureaucracy. The sword and the purse, which were once controlled directly by Presidents and Congresses, are now wielded, largely, at the discretion of nameless and faceless civil servants. Some conditions of bureaucratic discretion are fixed by the President and Congress, but such discretion is defined, also, in interpretations of law made by the courts. Hence, our courts have increasing influence over both the sword and the purse.
A third development concerning the power of the judicial branch has arisen from state courts. Here, I refer to something which courts have always done, but which recently have been exercising with novel vigor. It is the power to reinterpret and apply rules defining tort liability. Actually, such rules may have social implications as broad as those of statutes. The threat of having to pay damages to another individual can be as severe a limit upon one’s behavior as the presence of both a restrictive statute and a policeman to enforce it.
Returning to the mass media, we may take some comfort in their apparent coolness toward Chief Justice Burger. It seems plain that they liked Earl Warren better. Still, a relationship in which the U.S. Supreme Court applies the First Amendment as a guarantee of whatever privileges the media seek and in which the media extend to the court their journalistic support, could become a threat to American democracy.
There is no need to speculate regarding possibilities of an alliance between the bureaucracy and the judiciary. Although they have been little noticed outside the field of administrative law, several important changes of federal policy can already be attributed to such cooperation.
Long ago, Congress enacted legislation restricting the horizontal concentration of competing businesses into trusts or other combinations in restraint trade. The extension of antitrust law to combinations of supplier and customer, (e.g. Dupont and GM) and to conglomerates of unrelated businesses (ITT and Hartford Insurance) was accomplished by lawyers of the Antitrust Division of the Department of Justice and justices of the U.S. Supreme Court.
Together, many years after enactment of the basic laws, they “discovered” in them restrictions upon business which had never previously been thought to exist there. Similarly, the Federal Power Commission’s authority over producer pricing of natural gas, and authority of ICC to require railroads to piggy-back trucks were created by the Supreme Court’s generosity in interpreting the powers of bureaucrats—after Congress had ignored or rejected requests for such powers.
The third recent development may be traced back to Benjamin Cardozo, who became a national figure and U.S. Supreme Court Justice largely through his innovation in “MacPherson vs. Buick Motor Co.” Most Americans today would probably agree with Cardozo that manufacturers should be liable to the ultimate consumer for defects in their products. Recently,
however, our courts have further increased the liability of manufacturers for injuries suffered in the use of their products to the point that it is called “absolute liability.” Even proof that the product in question was the very best that it was possible to make with technology available is no defense. And, only proof of the grossest misuse of the product will nullify a consumer’s claim.
Increasing liability for torts is being imposed upon local governments as well as upon private businesses and upon the professions. Apparently (“Owen vs City of Independence, Mo.”), that liability includes situations of which the responsible officials were not aware and violations of rights never recognized in law before the claim. The cost of successful claims, and of measures to settle or prevent claims, are born chiefly by consumers and taxpayers, i.e. by the public.
The recent extensions of tort liability in America are not mere accidents or evolutionary changes in the law. Reduction of legal emphasis upon the responsibility of individuals for their own safety and upon proof of fault as a basis for tort claims, i.e. socializing the risks of contemporary life, has become a popular theme in law schools and law journals. Roger Traynor as a professor of law of the University of California, an author of journal articles, and then as a justice of his state’s supreme court, was one major promoter of the change.
Except in the special area of automobile accident claims, the American public has had little opportunity to consider questions of liability policy. Spreading the risks of life through new rules of liability may be a desirable public policy. According to John Hazard’s “Communists And Their Law,” however, no-fault liability has not proven to be satisfactory in Russia, where it was introduced following the revolution. The Soviet Union has now reintroduced the concepts of individual responsibility and fault into torts.
Whether or not the substance of our law should resemble that of the Soviet Union is not the issue here. The issue is whether or not our methods of making and changing law should reflect popular choices or only those of an elite.
And Alexander Hamilton’s comments upon the judiciary have ceased to be helpful. The nature and extent of judicial power have changed sufficiently to warrant public concern for our Constitution.
One thing which ordinary Americans can do about this situation is to keep in mind on Nov. 4, that he who wins the next presidential term, will probably have several vacancies to fill on the U.S. Supreme Court.