Spring constitutional

A few weeks back, as duly reported in this space, I finished John Milton Cooper, Jr.’s brilliant biography of Woodrow Wilson - and plunged directly into James Chace’s history of the Election of 1912.

Since I generally read two or three books at a time – an odd habit, but one I can’t seem to shake – I also started on Noah Feldman’s Scorpions, a sort of quadruple biography of FDR’s four great appointees to the Supreme Court.

Talk about a flashback.

Not that I remember the New Deal.  I was merely a hypothetical part of my parents’ projected future when FDR died.  But I remember some of his justices.

A week after my thirteenth birthday, Dad took me along as an unofficial eighth “member” of a seven-lawyer team which argued Griffin v. County School Board of Prince Edward County – a case which, despite the redundancy of its title – was anything but silly.  

We entered the monumentally impressive Supreme Court building, and I sat near the front to watch the Justices enter and hear oral argument.  Two of Feldman’s “scorpions” – Hugo Black and William O. Douglas – were still on the Court, sitting on either side of the great Chief Justice, Earl Warren.

I haven’t been back to the Court since, but the experience was unforgettable.

So was Feldman’s book.  I’ve taught U.S. History for years, and I studied a great many Supreme Court cases in law school, but Feldman adds the unique personalities of Justices Black, Frankfurter, Jackson and Douglas, weaving them into the larger historical picture and the stories of particular cases.

It was, quite frankly, delicious.

So much so that – having finished Scorpions, I dived quickly into Seth Stern and Stephen Wermiel’s Justice Brennan: Liberal Champion – which picks up the story of the Court just as Feldman’s foursome was leaving the Court.  Brennan, an Eisenhower appointee who served until the term of President George H. W. Bush, was the strategist who engineered much of the Warren Court’s agenda, and whose efforts prevented Presidents Nixon and Reagan from creating their dreamed-of conservative Court.

Stern and Wermiel don’t write with Feldman’s easy elegance, but their biography proved just as fascinating.  As soon as I reached the end, I downloaded yet another court history onto my Kindle – Jeffrey Toobin’s The Nine, which picks up the story near the end of Brennan’s career and brings it forward into the 21st century.

And somewhere in there, I dug out my old copy of Gunter and Dowling, the Constitutional Law casebook I studied in law school, and started slowly exploring its long-forgotten lore.

I’ve always been fascinated by our Constitution.  I fell in love with History as a first-year student at UVA, when my dean threw me into the deep end by enrolling me in Bill Ellis’ grad-level “U.S. History, 1789 - 1815” – a bear of a course which dealt, in depth, with the Constitutional Convention of 1787, the ratification struggle, and the administrations of Washington, Adams, Jefferson, and Madison.

Every time I’ve taught U.S. History, I’ve chosen to spend extra time on the Constitution, because, to me, this document is so central to who we are, as a people.

In my recent reading – three books in a row on the Supreme Court, with more, certainly, to follow – I’ve had an opportunity to look back into the great issues of constitutional law which have been America’s political battlefield for much of my lifetime.  

Whether the issue was school desegregation; gender equality; the rights of criminal suspects; school prayer; affirmative  action; abortion; or the death penalty, the issue always seemed to come down to whether our Constitution is a black-letter contract – to be construed strictly in terms of its original wording – or a living creation designed to evolve to meet the needs of changing circumstances.

Of course, it’s not really that simple.  One thing that emerges from a deep reading of the history of the Supreme Court – and its cases – is the understanding that there are many ways of interpreting our Constitution.  At any given time, it seems, there are fully nine distinct approaches at the level of the Supreme Court – for in the past eighty years, no two Justices have approached the Constitution in exactly the same way.

And then there are hundreds of leading scholars, thousands of legal practitioners, and yet more thousands of eager young law students – all wrestling with the same issues.

Nor are the rest of us excused, for every citizen is both subject to, and an interpreter of, our great Constitution.

For myself, the most I can say right now is that I come down largely on the side of those who believe the Constitution is a living creation, capable of change.  But I have a good deal more reading to do, and a lot more thinking, too.

It’s a subject worthy of serious attention.


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