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On the Inside
In This Issue
· Some Difficulties regarding the constitution
· The prayer issue
· Mass Media’s impact on Public Policy
· Letters to editors (reprint)
SOME ODDS AND ENDS OF AMERICA'S
By Ivan W. Parkins
It is increasingly vital to America that we achieve more public agreement about some aspects of the Constitution under which we live and exist as a national state.
For example, there are a couple of respects in which too many Americans are in conflict or just confused regarding the First Amendment and its interpretation. One is that its present position, i.e. first among the liberties enumerated in The Bill of Rights, should give it special weight.. Far too many people merely assume that that position implies a priority set by the Framers. Actually, James Madison and others of the Framers who served in the First Congress, and added the Bill of Rights, placed close personal relationships between Representatives and those that they represented first among the Rights that they submitted for ratification. That was ratified by some, but not by the required three-quarters of the states, and it is now essentially forgotten. Today, our Representatives are expected to remain in intimate contact with about a hundred times as many eligible voters as Representatives in the late 18th century were. And, the present First Amendment got there by the “accident” of ratification conflicts over details of the two proposals prior to it. Furthermore, it was mostly neglected until the burgeoning influence of journalists, professors, and other “wordsmiths” gave it primacy in the twentieth century.
Meanwhile, the Constitution and the Founders were never explicit or in agreement upon the jurisdiction of federal courts where the constitutionality of action by the elected branches was concerned. Chief Justice John Marshall attempted to settle that matter by his decision in Marbury v. Madison, 1803. But that case was both trivial and moot, until taken seriously as a precedent in generations later. No act of Congress was declared void by the Supreme Court until the Dred Scott decision in 1857, and that decision was most significant for helping to bring on the Civil War. During that war and since, judicial invalidation of acts of the other branches became effective. Only in the twentieth century did they become increasingly common.
It has been mainly since 1900 that the preparation of Supreme Court Justices has begun with highly formalized university educations followed by years of equally formal law schooling. At least as late as FDR’s nomination of Senator Black to the Court, many Justices had backgrounds that included rather ordinary law education and practice and little or no experience as judges. The Constitution does not require more.
Today, select nominees from a small body of formally trained and experienced legalists, most of them from a few very prominent university programs, are examined at length by numerous Senators. They are questioned in detail, especially about their views on “progressive issues” and often faced with contentious final hearings prior to Senate voting. Almost all of that is a post-WWII innovation.
CONSTITUTION OF THE
THIS ISSUE EXAMINES SOME OF THESE ROOT ISSUES
By Ivan W. Parkins
The key to understanding the depth of our present political conflicts is more knowledge of their origins. The “Youth Rebellion” of the 1960’s and 70’s was actually just one part of a much larger political movement. Eulogized by most mass media, it virtually escaped notice of the fact that it was accompanied by an increase of fatalities from domestic violence that probably exceeded our losses in Vietnam. And, the increased influence of those media goes far to explain why so many other opinions were being changed. Even the Supreme Court and its interpretations of the Constitution became parts of the change.
A SYMBOLIC ONE
This is a slight abridgement of a column of mine, MORNING SUN, 3/28/84.
By Ivan W. Parkins
Often in our recent politics liberals have assumed that the founding fathers meant to ban things such as school prayers by the First Amendment to the Constitution. Not since the publication of Walter Bern’s THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY, 1976, have such assumptions been possible among persons who are both informed and candid. The “wall of separation” between church and state and the ban upon prayers in public schools were little more than bits of liberal ideology until the Supreme Court of the United States adopted them, after World War II.
The story of how a few people—mainly upper middle class intellectuals working through such organizations as the American Civil Liberties Union and the American Jewish Congress—influenced our highest courts has been set forth by Frank Sorauf, in THE WALL OF SEPARATION, 1976. Professor Sorauf applauded the changes, but his account left little room to doubt that they were recent alterations in the meaning of the Constitution or that they were achieved by an activist minority without approval by the broader public.
Prior to 1947 the Supreme Court had very little to say regarding separation of church and state, and even in1947 what it did do was tolerate minor and indirect government involvement in religion. The Supreme Court’s ban on prayers in public schools dates from 1962.
The school prayer issue is a symbolic one. It is part of the post-World War II division of this nation over basic values. Under Chief Justice Earl Warren the Supreme Court adopted many of the revolutionary values of the 1960s. The subsequent Burger Court softened the trend re Christmas scenes on public property, making some return to continuity with the past.
The First Amendment begins, “Congress shall make no law…” That wording was consciously chosen by the First Congress as a means of permitting variations of religious policy among the states, some of which still had state churches. Only through very broad interpretations of the Fourteenth Amendment, added in 1868, did it become possible for federal courts to intervene in such matters as school prayers. Until after the courts were packed with the products of liberal university law schools and pressured by liberal action groups, i.e. the mid-twentieth century, they rarely did intervene in church matters.
I am not an advocate of school prayer. But, I regard as either ignorant or dishonest and anti-democratic the claims of those who assert that the Constitution, the founding fathers, or the American tradition require a banning of all such practices from the public schools.
Intolerance of religion is incompatible with democracy, as are intolerant religions. Unfortunately, since World War II, we have experienced some upsurge of both. It is a part of what has led to our present complex election battle
Constitutional Powers, the Anointed, and the People
An example of progressive liberalism that usurp the will of the American people
Letter to the editor
THE DETROIT NEWS,
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.
THE MASS MEDIA’S
IMPACT ON PUBLIC
Letter to the Editor;
U.S. NEWS and World Report
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.