Yes! The Constitution Allows Changes to the Supreme Court – and Other Surprises with Lawrence Goldstone

Episode Notes

Transcript

Lawrence Goldstone:

The court is a third political branch of government. If we don’t deal with that, if we pretend that this is some objective group of Latter Day Athenians going through the law and taking their own prejudice out of it, which is being stunningly naive, this is a political branch of government. Now everybody says it has become a political branch of government. It was always a political branch of government. It’s only a question of how we feel about which direction their politics is taking.

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That’s our guest on SideBar Today Award-winning author and historian, Larry Goldstone. SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the Colleges of Law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state, and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina and Mitch Winick

Mitch Winick:

Jackie. We’re going to take a different path in discussing the Constitution today. Most of our episodes have discussed how we interpret what the Constitution actually says and how the Supreme Court interprets the words and intent of the document. Today we’re going to talk about what was left out of the Constitution and the impact that these omissions have had over the past 200 plus years.

Jackie Gardina:

And Mitch, it’s a really good direction for us to go. As we’ve heard from our previous guests, Madiba Denny Damon Hewitt, joy Milligan and Petra Ross, the delegates to the Constitutional Convention in 1787 were unwilling and often unable to achieve consensus on a number of controversial issues rather than risk rejection. The drafters intentionally chose to leave these topics vague or undefined, hoping that after initial ratification of the new Constitution, these omissions would eventually be addressed by Congress, the courts, and the voters.

Mitch Winick:

Unfortunately, what we’ve experienced is that although this strategy was successful in the short term, we continue to struggle to achieve constitutional protection of equal rights on the basis of race, gender, sex, and ethnicity. In addition, the original limitations of a constitution drafted to ensure a more perfect union continue to be the cause of social conflicts and political polarization. Our guest today is Award-winning historian and author Larry Goldstone. He will help us better understand why what was left out of the Constitution is of equal importance to what was actually included. My hope is that he will reinforce our belief that even after 200 years, we continue to have an obligation to improve the Constitution.

Jackie Gardina:

Larry’s an award-winning author as well of more than a dozen books, including Imperfect Union, how Errors of Admission threaten constitutional democracy. His articles and opinion pieces have appeared in publications including the Wall Street Journal, Boston Globe, Los Angeles Times, Chicago Tribune, and Miami Herald. Larry, welcome to SideBar.

Lawrence Goldstone:

Thank you both and thank you for having me.

Mitch Winick:

Larry. Let’s jump right into the historical context of the Constitution. Take us back to those exciting days in the 17 hundreds in Philadelphia. You state in your book Imperfect Union how errors of omission threaten constitutional democracy that the delegates actually punted your words and that the omissions in the constitution’s texts have been exploited to give the Supreme Court more power than was intended and the justice’s greater tenure than was intended. So for the non Constitutionalists listening today, what do you mean by the omissions?

Lawrence Goldstone:

Let’s start by dealing with one of the assumptions about the motivations behind the Constitution, which I think is totally wrong. If you asked a hundred people, was the Constitution drafted to increase liberty? 98 would say yes, and 98 would be wrong. The Constitution was not written to increase liberty either through the states or individually, but rather to limit it. Before the constitutional convention, Americans had a ton of liberty. The 13 states each functioned almost like a separate country. They had their own constitution, their own executive, their own legislative, their own judiciary. They had their own monetary system. Every state could enter a treaty with a foreign power, and more than that, most people in the country identified with the state in which they lived first and only this vague concept, the United States of America, which by the way didn’t appear into the Articles of Confederation in 1781.

So what you have is much more 13 autonomous political units. They guarded their autonomy very closely, but the country had no way of making money. They could assess taxes, but they couldn’t collect them. They could ask for troops. They couldn’t demand troops. So even after the war was over, the articles were fatally weak. John Dickinson, mostly Alexander Hamilton and James Madison. When Madison and Hamilton were still friendly, which they turned out not to be, they recognized that the only way that the country could survive was a stronger central government, but they had a stronger central government. You are giving power to that entity and by definition taking power away from the states. Now, the states were not anxious to have that happen, so what you had was the situation where they come to Philadelphia and the trick is how do you make the central government strong enough to be able to raise money and do all these things you want the central government to do and not irritate states so much that they would walk out.

And of course you had conflicts, slave states, free states, states with Western lands state with no western lands. There were all sorts of divisions. And so this necessity of taking power away from the states meant that you were going to decrease the liberty that each state had since the states were made up of individuals. Every time you interpose a level of government over the previous one, the individuals lose some power. So what you have here is a situation where these people were meeting trying to figure out how much liberty they could take away and still get it ratified. Once you start for that assumption, the entire process, you’re flipping it on its head. The entire process changes in complexion.

Jackie Gardina:

So when you start with that premise, Larry, what omissions in the Constitution have been exploited specifically to give the Supreme Court more power than was intended, and justice is greater tenure than was intended.

Lawrence Goldstone:

When they’re in Philadelphia, there were certain hot button issues. One of them was slavery and one of them was commerce. But one of them, and one of the most controversial items they had to deal with was a national court system. Every state, as I said, had its own functioning judiciary. They didn’t want to give up power to a federal court system, but yet everyone knew they needed a Supreme Court. But a court system, if you believe that you were a citizen of a state and went to a district court, a federal court in a different state, it would be like trying to stand in judgment before foreigners. And so this became during ratification, this became one of the most controversial aspects. Here they are trying to figure out how they can have a court without a court system. So Article III ended up having only six paragraphs.

It didn’t say how many justices should be on the Supreme Court. It didn’t say whether there would be other courts. It didn’t say if there were going to be other courts, how would they be constituted It absolutely positively did not say, nor did it intend to give the Supreme Court the power to overturn legislative acts. That was done out of whole cloth by John Marshall in 1803 in Marbury versus Madison. So just want to read you something because Governor Morris, who wrote the final draft of the constitution later was talking about the drafting process and he said the language was as clear as would permit except for the part that relates to the judiciary on that subject, conflicting opinions had been maintained with so much professional astuteness that it became necessary to select phrases which expressing my own notions would not alarm others nor shock their self-love. And to the best of my recollection, this is the only part that passed without cavel. So what you had here was the intention of keeping Article three as vague as possible. For example, you don’t have to be a citizen to be a federal judge. Vladimir Putin is constitutionally eligible to be chief justice of the Supreme Court. Now, before certain political changes happened, that would’ve been a joke, but now who knows?

Mitch Winick:

Let me follow up on one other thing. If you take us s back to the 17 hundreds, life expectancy might’ve been 40, 50 years, not 80, 90 years, and that this idea of life tenure of the Supreme Court justices, if we want to go back to let’s say one of the justices use of original intent, one might be able to divine that there was never an intent to have a justice served for 40 years on the court. What would history tell us about that?

Lawrence Goldstone:

I’ll go you one better. It never meant for life. George Mason said, service for life is the equivalent of a anointing, a monarch. There is nothing in the constitution that prevents term limits. We do not need a constitutional amendment. Then there’s one other thing to look at. Here they are meeting for four months in a closed room in Philadelphia. Windows are barred cars in front of the doors lit small room. These people didn’t really like each other, many of them, the Northern delegates are wearing these heavy woolen suits. It’s 90 degrees out malodorous. The idea that after four months of trying to avoid giving any one branch enough power to become despotic, that they would allow this unelected group of people to have all of this authority is just ludicrous.

Jackie Gardina:

We had Steve Vladeck on here who is the author of the Shadow Docket, and one of the things that we talked about during that episode was not so much Article three and the omissions or perhaps misinterpretations, but actually Article one and how the Congress has essentially given an enormous amount of power to the Supreme Court to control its docket to make certain decisions through the 1925 Judiciary Act. So it seems as if there’s two things that are allowing the Supreme Court to amass power beyond what was originally intended. So I don’t know if you have any thoughts about Congress’s role in helping limit the Article three powers?

Lawrence Goldstone:

Absolutely. Now in Article three in Marbury versus Madison, John Marshall famously said, it is the job of the judicial department to say what the law is, but the two most prominent legal philosophers of the day, Blackstone and Montesquieu both said, no, that is the road to Despotism. What he left out in his Marbury 10,000 word decision was that in article three, it gives Congress the specific power to change jurisdiction. For people who grew up in the sixties and seventies and eighties, they think of the court as well. This is kind of a liberal bastion, the Miranda decision and Baker versus Carr and Roe. But in fact, for almost all of our history, the court has been the defender of the status quo. Congress’s lack of action is partially because the court wasn’t a threat. The court was maintaining a status quo that Congress actually approved of the 14th and 15th amendments were extremely unpopular even in the north.

Then the Civil Rights Act of 1875, which allowed free access to theaters and public conveyances was immensely popular. So when the court declared the Civil Rights Act and the civil rights cases in 1883, everybody was kind of happy. Now we have a very different situation where the court and much of the government has moved away from what the people want, and the legislature unfortunately is reflective of that conservative bent. So part of the reason that the legislature kind of abdicated its responsibility or punted the kick the can down the road theory of government is that the court reflected what they wanted. For much of our history,

Mitch Winick:

There’s nothing the court can say that prohibits the legislature from doing its job. If we want a federal law about the equal rights amendment, we had guests talking about what the legislature can do about that. If we want a federal law that says abortion is legal, there’s nothing that the legislature can’t do to pass that. And that to your point, many of us got used to the idea that we could use the court’s decisions to interpret either existing law or gray areas or missing laws, and we actually were putting the court in a position of legislating. Is that a fair observation?

Lawrence Goldstone:

Totally. It was fine when the legislation went in the direction we liked and then it became not so fine and all of a sudden this phrase legislating from the bench, which used to be how the conservatives describe the liberal justices, I would say that probably applies more now to the conservative justices. You don’t hear conservatives use the phrase legislating from the bench anymore, but you hear liberals in effect saying the same thing. One of the other themes I’ve have is that, and everybody is saying it now, but I’ve been saying this since 2005, is that the court is a third political branch of government. If we don’t deal with that, if we pretend that this is some objective group of latter day Athenians going through the law and taking their own prejudice out of it, which is being stunningly naive, this is a political branch of government now everybody says it has become a political branch of government. It was always a political branch of government. It’s only a question of how we feel about which direction their politics is taking.

Mitch Winick:

We are going to take a short break and when we come back, we’re going to continue our conversation with Larry Goldstone award-winning historian and we’re going to talk with him about is the Supreme Court a political branch of government

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Mitch Winick:

In a recent decision overruling what is known certainly in the legal circles as the Chevron deference. Justice Gorsuch wrote, the court returns judges to interpretive rules that have guided federal courts since the nation’s founding. What interpretive rules do you think that Justice Gorsuch is talking about?

Lawrence Goldstone:

I have no idea, and I’m not sure he did either, because what they’re saying is we come down again to a basic concept. Is the law an ideal or is it a law language? Now for conservatives, law is language, and it’s kind of ironic that so many of the current justices had a scholastic education where language is everything. What interpretive rules? I don’t know. John Marshall had an interpretation of the Judiciary Act of 1789. That was wrong. He left out when he declared that section, I think it was section 13 unconstitutional. He left out that Congress actually had the right to change appellate and original jurisdiction. So these interpretive rules are interpreted in a very convenient way, and so I was serious if you pinned Justice Gorsuch down on what he meant, he would end up giving you a very subjective list of what these interpretive rules are. And if you asked, say Steven Breyer, who was a proponent of using other country’s legal systems as to back up American jurisprudence, he would give you a different set of interpretive rules. So the interpretive rules are in themselves interpretive. So we have second order interpretation here.

Jackie Gardina:

Well, and I just want to put a fine point for listeners who may not be familiar with Chevron deference because it certainly fits in with the broader theme we’re talking about today regarding Supreme Court power. In 1984, the Supreme Court issued a decision called Chevron in which they decided that when a administrative agency tasked with interpreting a particular complex statute such as an EPA, the Clean Water Act or the Clean Air Act would be the primary interpreter of ambiguous language within the statute, because they had the expertise and were delegated the authority by Congress to actually implement that particular statute this term, the Supreme Court after 40 years said, you know what? We’re overruling that decision the administrative agencies will no longer be deferred to, and instead the courts will decide, and it really turns on its head the deference that was given to the executive branch in implementing statutes and instead pulls it into the judicial branch. Larry, I know you haven’t had a lot of time to think about the implications of this, but overturning the Chevron doctrine I imagine is probably going to be more impactful on Americans than the abortion decisions, even though that’s been incredibly impactful. I don’t know if you could talk about what you think about judiciary taking that power away from the executive branch and depositing it in their own pocket.

Lawrence Goldstone:

You could make the argument that right now the Supreme Court is running the country. Had Article III been written with more detail, the unwillingness to discuss what jurisdiction would be, how it would fall, what the court structure would be, these are the openings in which savvy political operatives like the current roster of Supreme Court justices will rush into. I have a chapter in the book Nature and John Marshall Abor vacuum. What you have here is there was a very famous baseball umpire named Bill Clem way back in 1920s or something, and there was a play. Guy slides home and he clearly beats it and Clem calls him out. The runner gets up and he yells and he says, I was safe. And Clem looks at him calmly and said, if I say you’re out, you’re out. And if the court says, the experts are not the people to interpret a statute or a regulation, the experts are not, then you ask Who is well, who’s left?

Jackie Gardina:

That brings us to another piece of your book, which is that idea of tyranny of the minority and how it results in undemocratic outcomes. So in your book on account of Race, you write that one promise of democracy is the right of every citizen to vote, and in fact, Alexander Hamilton wrote that the Supreme Court would protect the weak against the tyranny of the minority. However, through the better part of American history and even in recent Supreme Court voting rights decisions, it can be argued that the court has restricted and even denied voting rights for black Americans. Is it that the Constitution or the Supreme Court’s interpretation of the Constitution that is failing to provide voting equity?

Lawrence Goldstone:

It’s both. First of all, you cannot believe what Hamilton wrote in federal is 78. The reason being he didn’t believe what he wrote in federal is 78. I’ve got a chapter in the book and I’ve got an article up called Unreliable Narrator, the Federalist Essays. These were Op-eds. First of all, Hamilton favored a court system very different than the one he described in Federalist 78. And secondly, after his six hour speech on June 18th, that left the other delegates aghast because he proposed a monarchy and abolishing the states. He came in the next day had to say, no, no, I really didn’t mean it, and then he left. So he wasn’t even there when they discussed the court system. The denial of rights is of course made possible because of a lack of a discussion of who gets to vote, who’s a citizen. I was stunned when I first started doing this.

I was looking at Article three first because I had written a book on judicial review on Marbury and thought that decision was convenient. And as I looked into it and you read the debates, you have to read the debates and see what these people said. You realize that first of all, nobody wanted people to vote. In the first presidential election in 1788 in a country of 3.7 million people, 700,000 were slaves. George Washington was elected by 40,000 people. 200,000 people are eligible, 40,000 voted. Hamilton was one of the people who said, you should have two classes of citizenship. Only the wealthy, the educated Madison said the same thing. John Adams said the same thing. Nobody wanted people to vote. Now, as time went on, they had property requirements. Those were abolished tax paying requirements, those were abolished. Then they had the Jim Crow Southern constitutions. The story of the country to me is not where we started, but how we progressed over 200 years and we little by little expanded this notion of democracy to more and more people until now.

This is the first time in my memory that we’re actually starting to turn it back. So when you ask who denied people the right to vote, the answer was just about everyone. Jefferson and Franklin also. But Jefferson was only one of the serious politicians in the 1780s and 1790s who wanted to expand the franchise, and that was because that was his power base. I think in nine states in 1787, you couldn’t vote unless you owned 50 acres of property in four states, you couldn’t vote if you were Catholic and Jewish. When Edmund Randolph presented the Virginia plan, he said, knowing that it would strike a chord, we’re not going to have too much democracy here. So you’ve got to keep that in perspective when you’re thinking in terms of why these rights were so difficult to attain.

Mitch Winick:

I think you make that point very well, Larry, circling back to the role of the Supreme Court, in your book inherently Unequal, you review specific Civil War Supreme Court decisions that illustrate how the court’s narrow interpretation of the 14th Amendment, which is supposedly bestowing equal protection under the law to all Americans, actually resulted in decisions that diminished the status of African-Americans. Tell us about this critical period of the Supreme Court decisions and how it’s influenced in your opinion, the current court and perhaps even extending it out, how it may be influencing how the court restricts its views on equal rights for women.

Lawrence Goldstone:

In theory, you can’t declare a constitutional amendment unconstitutional because it’s in the Constitution, but what you can do is use language to limit and alter how it’s enforced. So what they said was, all you have to do to pass constitutional muster is not announced that you’re discriminating. And that principle followed all the way through to the use of language to justify a social or political position, and that is to me, the fundamental problem with the court system in the United States and probably everywhere else.

Jackie Gardina:

Well, I just want to follow up on that a little bit because you were talking about how the court participated in not in franchising marginalized groups even after the 14th and 15th Amendment was passed, and then we saw progress through legislation, the Civil Rights Act finally in 1964 and efforts at the state level as well. And now we’ve got the court interpreting the 14th Amendment in particular in a way that suggests that it’s colorblind. And I’m wondering what your thoughts are about comparing what was going on when the 14th and 15th Amendment were first passed and the court took a swipe at it versus now

Lawrence Goldstone:

They’re both similar and dissimilar. This colorblind argument I love because they are taking something that was talk about original intent. If Clarence Thomas really wants to go back in history and look at what the 14th Amendment debates were like and how it came out and why it was ratified, he could not justify his vote. In Shelby County, for example, what they are doing, both of them are looking to use language as a means to justify a political or social position. They are dissimilar in that in the 1870s, 1880s and 1890s, the overwhelming majority of white America did not want to mix with black people. They resented being forced to, as I said before, coexist. Now the social climate is different in that most of the country believes in at least some semblance of equal rights, but there is a substantial number that does not want that because black people, Latin, Indian Americans, whatever you want, may vote and may assert themselves politically in a way that will take power away from them. So in a way, we’re back to where we started in that how much of the Constitution actually exists to create a strong central government, which was needed then and is needed now to some degree, and how much is done in a way that allows the states to end run those provisions and reclaim power for themselves.

Jackie Gardina:

That’s really helpful distinction between then and now, but also a helpful comparison in terms of how they reflect the similar thinking. Just to keep on that same idea about court interpretation, we have discussed with a number of previous guests the increasing use of history and tradition test by the conservative majority of the current Supreme Court in Second Amendment cases, abortion cases, reproductive health cases, presidential immunity cases, and even treason and insurrection cases. So you’ve been helping us better understand some inherent limitations of the Constitution as drafted in 1787. How does that play into reliance on history and tradition as the basis for applying the Constitution to current social, legal and political issues? And what do you think the drafters would say about this approach if they were here today?

Lawrence Goldstone:

I believe the drafters would have a one word response, oi, but I’m a historian. If you’re going to use history, use it, right? The Bruin case, for example, the New York state, the gun case, Clarence Thomas said, well, we need to go back to 1791 when the amendment was ratified. But if he went back to 1787, he would see that in the debates, possession of weapons was intrinsically linked to a standing army. Nobody wanted a standing army. So if you don’t have a standing army, how do you have national defense? Well, you have militias and how do you have militias in a country that’s broke? Well, you make sure they have guns. This idea that if we as a people say people should have the right to own weapon, that’s fine, but the second Amendment and Scalia’s opinion in Heller was ridiculous because here’s a guy who said, I don’t care about intent, and his entire argument is intent.

Again, convenient use of language to come out on the side you wanted. This use of history is also just another tool that they use to end up where they wanted to be in the first place. Now, I just want to say on a totally different case, if you look at Bush v Gore, you have five justices who ordinarily believe that the 10th amendment trumps the 14th amendment, and you have four justices on the liberal side who believe that the 14th amendment trumps the 10th amendment. Five justices opt for an interpretation that is 14th amendment based against their political point of view, and the four liberals opt for a 10th amendment interpretation, which is against their point of view. So this isn’t only on the conservative side, and it’s inevitable because language is subjective. Read Article one, section eight, Congress can draft any law necessary and proper what does necessary and proper mean.

When I give talks, I say for parents, what’s necessary and property to get a kid to go to bed, bribe them, let ’em fall asleep on the couch, give ’em candy, yell at ’em. Each of those interpretations would be considered necessary and proper depending on your point of view. So this notion that there is this one-off interpretation of the constitution, which the people who are quoting it say their interpretation is correct, it’s not possible because when you deal with nuance of language, which is what I do in a lot of my writing, not just about the constitution, you realize that it’s not possible almost ever to come up with a one-off interpretation of any relatively complex sentence, clause, article, whatever.

Mitch Winick:

We’re going to take another short break. Our conversation today is with award-winning historian Larry Goldstone. After the break, we’re going to ask Larry whether he agrees with the idea of using history and tradition as a basis for Supreme Court decisions.

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Jackie Gardina:

Madiba Denny who just released her first book, the Originalism Trap was talking about, so what’s an alternative to history and tradition or originalism, and she talked about an inclusive originalism. The idea that if we’re moving towards that more perfect union, then the interpretation of the texts and the history, et cetera, would be to meet that ultimate spirit and goal of that more perfect union. Would you say that that’s a viable or true approach to constitutional interpretation?

Lawrence Goldstone:

I’d love it. I don’t think it’s viable because again, how are you going to take the politics out? But again, we go back to is the law merely language or does it represent an ideal? And that interpretation would be the law represents an ideal. I happen to agree with that. But from a practical standpoint, expecting that point of view to work its way into jurisprudence, let’s call it optimistic.

Jackie Gardina:

Well, it seems like in some ways it was there in the sixties and seventies when rights were being expanded and things were being recognized as kind of implicit in the constitution. Those un enumerated rights, it seems as if that was a blip on the screen rather than a true force that was going to stay with us.

Lawrence Goldstone:

You had due process, then you have substantive due process, then you had economic substantive due process, all these derivatives going down the road. Now, the only way we’re going to combat this is through who the judges are. This is we are dealing with human beings who have points of view and language that allow those points of view to always find some basis. So in the sixties and seventies, we had moved So far the pendulum just swung because the denial of rights. Bloody Sunday watching John Lewis get his skull fractured on national tv. When they did that, they broke into judgment at Nuremberg. A, b, C breaks into the premier showing of judgment at Nuremberg to show the Alabama police and state troopers beating up the black protestors. It was a whole different mood then, and I believe, which is really sad. I think the country is still in that mood, but because of the constitution leaving these ua, we’ve had what I would consider the wrong people rushing to fill.

Mitch Winick:

To follow up on that, as a wrap up, we try to end each episode looking to the future. It’s no surprise that many of us are concerned about the current actions and inactions of both the Supreme Court and Congress specifically as it applies to protections of our personal rights. You remind us as a historian that these conflicts are neither new nor unusual. Many of us are worried that we should be hitting the panic button. Can you give us a more encouraging view of how our system with its constitutional checks and balances will actually continue to work out over time?

Lawrence Goldstone:

Again, that’s a one word answer. It’s vote. Democracy is an unforgiving system. If you stay home, the other guys get to make the rules. There are too many people in this country who don’t recognize that fundamental fact. If we want a vibrant country, we must have a vibrant citizenry. If you’re asking me, am I optimistic, I don’t know whether I’m optimistic or not, but I know what the answer is.

Jackie Gardina:

Larry, I think that’s a perfect message to end on. So thank you so much for joining us today.

Lawrence Goldstone:

Well, thank you both. This was great. I enjoyed it immensely.

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