Settled Law and a Living Constitution

We are often told that we have a "living" constitution. I am a moderate and agree with this assessment. After all, if it were not so, we would still be living with a permanent decision in the Dred Scott case. Nobody is in favor of that.

A "living" constitution has given us most of the freedoms we enjoy today. Many of them are bundled within the 14th Amendment, which is somewhat akin to placing all your eggs in one basket. But that's another story......

This year there has been a sea change in our society surrounding the Roe v Wade decision, which was made under the auspices of the 14th Amendment. Several states, almost half at this point, have passed new restrictions on abortion, leading the Pro Choice crowd to talk of "settled law."

While I am pro choice, I am also a Constitutionlist and a believer in a "living" Constitution. After all, it was this belief in a "living" Constitution upon which Roe v Wade was predicated and upheld.

Settled Law implies that once the Supreme Court decides an issue, then it's settled. Court nominees have had to convince Congress that they believe Roe v Wade to be settled law. I do not believe in "settled" law.

So, how do I merge both beliefs, which may seem to be in opposition to one another? Let's explore this.....

A Living Constitution implies that changes made by Amendment will apply as the people change and society grows.

Some people will be saying that the changes to abortion law are all part of a "living Constitution", and there is merit in that argument.

Others will opine that "Settled" Law means there can be no changes made to law after a Supreme Court decision has been rendered. There is also some merit to that view.

To really decide this issue you have to look at which changes by Amendment have been successful and which have not. You don't have to look very far for the example. It was the Volstead Act, the 18th Amendment in 1920. It was a failure and repealed by the 21st Amendment in 1933.

Here then, is the dilemma we face.

If we believe in settled law then we should still have slavery under Dred Scott, or Separate but Equal. Since "settled" law is not possible with an amendable Constitution, we don't have those things anymore.

So, we would have to say we don't believe in settled law. We believe in a "living" Constitution which changes with the needs of the people. (Notice I say "needs" and not "wants.")

People wanted Prohibition, just as they once approved of slavery. We are not populists. So, the "living" Constitution is capable of changing its mind, just as it did with the Volstead Act.

This may seem as being in agreement with a reversal of Roe v Wade under the 14th Amendment, but it wouldn't be true.

The big difference in all of this argument, and the point which most often goes unsaid, is that "settled" law has only always applied to our being granted more rights under the law.

The one time they tried to use the Bill of Rights, which is comprised of all 27 Amendments, to tell us what we could not do, was a failure and needed to be reversed.

Abortion is a right granted, not removed. As such, "settled" law is not contradictory to our "living" Constitution. It is compatible with it.

The 27th Amendment and Women's Rights - A Connection

The Constitution of the United States of America is a wonderful document. The principles upon which it is founded are the cornerstone of our very souls. The document is emblematic of that uniqueness of the American Spirit which gave it birth. It has but one flaw. Almost immediately after the opening phrase “We the People”, we the people get left behind. The document is so hard for the average American to understand that it sometimes appears to be saying the opposite of what it means.

We all know that it is not without flaw; no document ever is; even my own. But you have to marvel at some of the stuff the founding fathers; and their successors; have come up with over the centuries. My favorite is, of course, the 27^th Amendment. This Amendment was passed within our lifetimes. I’m assuming that you were born before 1992. I was born in 1954. And, as with all previous Amendments passed since I was born, I paid close attention to it.

The 23^rd Amendment was the first in my lifetime. It dealt with giving the citizens in the District of Columbia the right to vote. This was a big deal. Imagine, before this law was passed, white folks were actually equal with African-Americans south of the Mason-Dixon Line. They couldn't vote either. I was 7 years old and I understood this Amendment.

The 24^th Amendment was passed in 1964 and abolished the poll tax, ensuring that all citizens had a right to vote. It is sometimes mistakenly referred to as the Voting Rights Act. I was 10 years old and understood it.

The 25^th Amendment was less interesting, as it dealt with succession of the office of the Presidency. But since we had lost a President when Kennedy was assassinated only 4 years earlier, I did pay attention. I was 13 and I understood it.

The 26^th Amendment was an easy one. It was passed in 1971 when I was almost 17 years old. With a Presidential Election coming in November of 1972, it meant that I could vote, along with anyone else who was 18 years old. I was 17 years old at the time, so I really understood this one.

Now, here’s my favorite; the 27^th Amendment. Before I even take umbrage with it, I will print it here for you. You can go and check it elsewhere if you wish. I assure you it is to the letter.

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Now, the Amendment was added as an addition to Article I, Section 6, Clause 1 of the Constitution, which states;

“The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.”

The original intent of the article was that the elected members of Congress not decide for themselves how much they were worth. The Amendment to it not only muddles this point but ends up in calling for an election of the representatives; which was never an issue in the first place. After all, Congress does make the laws.

But; moreover; in practice this was tied to a Court Case in 1989 which gave the Congressmen and Congresswomen a Cost of Living increase annually. The rest of the country has never had a cost of living increase. The court declared that a cost of living increase for the Senate and Congress was not a raise. This of course also applies to Federal Employees.

So, basically the Congress waited until the cost of living was already in place before ratifying the amendment giving themselves the power to grant themselves a raise. And they get a cost of living increase along with it. And every other year they get to vote against accepting this cost of living increase, giving themselves a great opportunity to pretend to be turning down a raise. At about $180,000 per year plus perks and expenses I guess they can afford to wait a year or so.

And let’s not forget that if they vote against it for 3 years in a row; or any number of years for that matter; they later on get the cumulative increase for the years in which they voted to not get a cost of living increase. It’s a shell game. It took them 202 years to ratify this 24 word amendment. Ask someone what it means. I’m 59 and still don’t understand it.

Now you have to ask yourself why this was allowed to stand after so long a time had passed. After all, the passage of time is exactly what they say keeps the Equal Rights Amendment for Women from being ratified. And that's only 41 years old. It only lacks 3 states. By contrast the 27^th Amendment was only ratified after Michigan certified it on May 7, 1992. This made 38 states, enough for the Amendment to be certified by the Chief Archivist of the United States Don W. Wilson. On May 19, 1992, he had it printed in the Federal Register, together with the certificate of ratification.

The only 2 legislators to speak out against the unusual length of time for ratification were Tom Foley and Robert Byrd. They called for a challenge to the Ratification. But,technically speaking, certifying an amendment falls under Title 1, section 106 b of the United States Code, which states:

“Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

Notice the statute does not contain a time clause. Now you have to ask yourself why the Equal Rights Amendment for Women was not afforded the same privilege. The reason often given is that too long a time period has passed. That flies in the face of the 27th Amendment and how it had no trouble being ratified.

Basically this is about duplicity concerning the Ratification of the ERA. The real reason for the law has been lying dormant is in the wording.  It is written to grant Equal Rights to all genders. That would now include the LGBT community and Same Sex Marriage, which are both Civil Rights Issues to begin with. That legislation reads as follows;

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Our Constitution is a wonderful piece of legislation. It is; as I said earlier; the backbone of our society, and I wouldn't change it for the world. But there are parts of it that need to be made clearer for the average citizen. 

Virginia Same Sex Marriage Ban

There comes a time in every argument where one side must give way to the other; either out of common sense, or self-preservation. As regards the arguments for; or against; gay marriage, that time has come.

There is a scene in the docudrama “Adams” in which David McCullough has Benjamin Franklin stating that; in regards to the colonies being free; the time had come to state the obvious, that these colonies were not asking for freedom, rather they were declaring it to be a fact.

The recent decision by the Eastern District Court in Norfolk by Judge Arenda Wright Allen; in which she stayed Virginia’s new law banning gay marriage; going so far as to draw upon the Declaration of Independence to arrive at her decision ignores the fact that the Declaration of Independence is not considered law. But this seems to be of no concern to the Judge as she tramples upon the stated wishes of the voters in her district. Which is not to say that this issue is one which should be up for a popular vote to begin with.

Let me state right here that I don’t care who marries who; and my marriage never needed the “protections” offered by Bill Clinton’s DOMA; an absurdity unto itself. But to celebrate; as they are in Virginia and elsewhere; this decision, as a victory for anybody is a farce. I’ll explain.

Look at the article below, which I have reprinted from the Associated Press. You can check it at the link below the article for accuracy. Tell me if you find any reference to the judge’s misnomer in citing the Declaration of Independence as a source for her decision. Then look below at the text of her actual decision and tell me why that is not in the news reports. And, if you don’t know why it’s important I’ll tell you.

People are celebrating a STAY of a law. This is not an automatic win. Coming, as it does, after 57% of Virginians voted for the ban, is inflammatory and does little to ease the divide in relation to an already controversial issue. As a matter of fact it does the opposite.

Moreover, it distorts the very foundation of the law our society rests upon; the United States Constitution. So, what would I do? That’s simple. I’m with Benjamin Franklin. Rather than continuing this divisive voting on an issue which is a Civil Right; and as such is not subject to a Popular Vote; why not declare it what it is; a Right and be done with it?

In short, you have people celebrating a non-existent victory over a STAY, which is founded upon a document which has no legal merit in court, of a law approved by Voters who really have no legal basis to decide a Civil Right. I am not making this up- and, if I did; I hope that you would not believe it. I can hardly believe it myself.

Other than making judges appear to be fools, and voters appear to be bigots; why not recognize that; just as you cannot vote to disenfranchise an African-American, or a Woman from marrying the person of their choice; regardless of color; the same right is inherent for all human beings?

The only reason I can discern is to keep us all divided upon a social issue, and thus ensure that the power remains with those who already hold it. I urge you to call Judge Wright Allen at her chambers in Norfolk and ask for an explanation about that Declaration of Independence thing. Here’s the number;

1-757-222-7013 Tell ‘em Robert at Rooftop is still waiting for an answer.

A 1st for South: Va. Gay Marriage Ban Overturned

NORFOLK, Va. February 13, 2014 (AP)

By BROCK VERGAKIS Associated Press

Associated Press

In a first for the South, Virginia's same-sex marriage ban has been overturned, with a federal judge ruling that the voter-approved amendment is unconstitutional and declaring the move "another moment history when We the People becomes more inclusive."

U.S. District Judge Arenda Wright Allen on Thursday issued a stay of her order while it is appealed, meaning that gay couples in Virginia still won't be able to marry until the case is ultimately resolved. Lawyers for the clerks in Norfolk and Prince William County who defended the ban are expected to file the appeal, which will be heard by the 4th Circuit Court in Richmond. It could uphold the ban or side with Wright Allen. If the 4th Circuit sides with overturning the ban, it too could issue a stay while the case is appealed to the U.S. Supreme Court. Both sides believe the case won't be settled until then — or until the high court rules on a similar case.

Wright Allen's decision echoes recent rulings elsewhere in the U.S. and is the strongest foothold yet in the South for the gay-marriage movement. On Wednesday, a judge declared that Kentucky must recognize same-sex marriages performed in other states, but didn't rule on the constitutionality of whether such marriages can be performed in the state.

The office of newly elected Virginia Attorney General Mark Herring took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.

She struck down the three key arguments offered for denying gay marriages.

"Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family," Wright Allen wrote.

She also wrote: "Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships."

Wright Allen's stay was requested by the Virginia Attorney General's Office to avoid a situation like what happened in Utah when a gay-marriage ban was declared unconstitutional. More than 1,000 couples were married in the days after the ruling until the U.S. Supreme Court granted the state an emergency stay, creating a cloud of uncertainty for their status. Soon after, a federal judge also declared Oklahoma's ban unconstitutional. That ruling also is on hold while it is appealed.

In a Valentine's Day news conference, the two couples at the center of a Virginia case said that while the decision has been stayed, it brings them one step closer to marriage.

"The saying here is Virginia is for lovers, and truly we are experiencing that today in a way that we never have before," Carol Schall said. She and Mary Townley have been together about 30 years. They married in California in 2008 and have a teenage daughter. The couple wants Virginia to recognize their marriage.

Timothy Bostic — who was denied a marriage license with Tony London by the Norfolk Circuit Court on July 1, shortly after the Supreme Court struck down parts of the federal Defense of Marriage Act — said the judge in this case "gets it."

"She understands why we're doing this and how important this is to us, and anyone that believes in the ideals upon which this country was founded can't help but understand," Bostic said.

Adam Umhoefer of the American Foundation for Equal Rights, which sponsored the challenge for the plaintiffs, emphasized the message the ruling sent to the South. "Today in places like Birmingham and Biloxi, Chattanooga and Charleston, gay and lesbian couples know that equality isn't just something that happens up north," he said.

Supporters of the state ban on same-sex marriages issued statements decrying Wright Allen's ruling.

"It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters," said Tony Perkins, president of the conservative Family Research Council.

Brian Brown, President of the National Organization for Marriage, called the ruling "another example of an Obama-appointed judge twisting the constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia."

In a movement that began with Massachusetts in 2004, 17 states and the District of Columbia now allow gay marriage, most of them clustered in the Northeast. None of them is in the old Confederacy.

Opponents of the Virginia ban say the issue resonates in Virginia in particular because of a landmark 1967 U.S. Supreme Court decision involving a Virginia couple and interracial marriage.

Mildred and Richard Loving were married in Washington, D.C., and lived in Virginia when police raided their home in 1958 and charged them with violating the state's Racial Integrity law. They were convicted but prevailed before the Supreme Court.

During verbal arguments in the gay marriage case, Virginia Solicitor General Stuart Raphael said that ban is legally indistinguishable from the one on interracial marriage. He said the arguments used to defend the ban now are the same ones used back then, including that marriage between two people of the same sex has never been historically allowed. Wright Allen concurred with that assessment in her ruling.

"Tradition is revered in the Commonwealth, and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia's ban on interracial marriage," she wrote.

In defending the law, the attorney for the Norfolk clerk said the issue is best left for the General Assembly and the voters to decide.

Attorney General Herring, in a news conference Friday, said his decision not to defend the ban was "consistent with the rule of law."

"Although this process is far from over, it remains a great day for equality in Virginia," he said.

Nationwide, there are more than a dozen states with federal lawsuits challenging state bans on same-sex marriage.

https://pbs.twimg.com/media/BgZ1olhCUAAVHEZ.png

"Out of Order" by Sandra Day O'Connor (2013)

The most remarkable thing about this book is that it has never been written before; but then again, we never had a Supreme Court Justice like Sandra O’Connor before either. An accomplished author, the Honorable Justice has taken all of the tales about the Supreme Court; its history, it’s members, it’s legends and tall tales; and place them all in one book.

With the same style and dry sense of humor which marked her previous memoirs, the Justice has written an account of the daily workings of the Supreme Court in the 21^st Century, and how those changes reflect the changes of our constantly changing nation. The Court is really kind of a mirror of whom we are, and if we don’t like what we see, then we have to make the changes ourselves.

History buffs will enjoy all of the minutiae in the book, as well as some funny stories about the Justices themselves; both living and deceased. Some were liked by their colleagues, some were loathed. The important thing being portrayed here is that the Justices are just people, entrusted with the care of the Law in our nation, and as outlined in the Constitution they are sworn to uphold.

Exploring the appointments of the various Presidents lends a unique insight into history. There have been only 3 Presidents who never made an appointment to the Court. There have also been issues which the Court has come head to head with the Executive branch in their attempt to interpret the meaning of the law under our Constitution.

Sometimes they have gotten it wrong, as in Plessy v Ferguson, the so-called “separate but equal” ruling in the late 19^th Century. That mistake stood for 50 years, or more, but the point is that it was corrected. We live in an elastic nation, and Justice O’Connor has written a book that does our Court system, and the people who have set on the bench, a great service in making them appear more “human” than they have been portrayed before. This was a very quick and enjoyable read.

"The Best Lawyer in a One Lawyer Town" by Dale Bumpers

This may turn out to be the best autobiography, or memoir, that I will read this year. I picked the book by the cover, something I have been reproached for many times, but still haven't learned not to do. The image of the young man on the cover, with a picture of whom I believed to be his wife, or girlfriend, in the background, reminded me of my parents generation, so I was immediately interested in reading the book. I had no idea who Dale Bumpers is. I do now!

I read a lot of books, being retired early has given me the time that I always wanted to just sit and read. There is so much to be learned in everything that is written. And when you come across something as well written as this book is, you just keep on turning the pages.

Like most good books, this one can be read on several levels. As a memoir, it is extraordinary in the author's accomplishments, both as a busisnessman and lawyer; and later on, as a politician. His rise from the relatively humble beginnings of small town Charleston, Arkansas during the Depression years, to Attorney, then Governor, and later United States Senator, make for a wonderful story about the promise inherent with being born an American.

His exploits with his brother and the bond with his family are the stuff that William Saroyan wrote about in "The Human Comedy." This is a story about America when she was still perceived as strong and good. The grief of the author concerning his parents death in 1949 is palpable to the reader. His sister's struggle with health issues that almost killed her highlight the compassionate leanings of the future Senator fron Arkansas. He came from the people he represented, never forgetting the deprivations of his own youth.

On another level the book is a history of the times in which it takes place. There were times of great social upheaval during the years leading up to, and even after, the Second World War. These were times in which our system of government was sorely tested. And Dale Bumpers had a front line seat to all of it, working first as a paper boy, then in his father's hardware store, and also as a Marine during the closing days of the war. Through all of these adventures, somehow Mr. Bumpers never loses his humility, something which he inherited from his father, an educated and compassionate man, to say the least.

Upon his return to Arkansas after the war the author goes to school in Chicago on the GI Bill, becomes a lawyer and returns to Charleston to run his fathers hardware store. He also begins his law practice in the rear of the store, conjuring up shades of Abe Lincoln in Springfield.

There is one story in this book that truly gives the measure of Mr. Bumpers and his extraordinary life. That is the episode of the alarm clock. There was a man in Charleston named Keith Robinson. He was borderline in his mental capacity and his job was to sweep the streets. He was an object of ridicule to many of the town's school age children. Mr. Bumpers was not one of these tormentors. But several years later he sold Mr. Robinson an alarm clock on credit, knowing pretty well that he would never be able to collect for it. Mr. Bumpers then recounts that although he was appalled at the treatment of Mr. Robinson by others, he never once did anything about it.

His recollection of the shame he felt, and still feels, concerning the one time he did ask Mr. Robinson when he was going to pay for the alarm clock, which only caused Mr. Robinson extreme embarrasment, is very telling. That the author includes this story, highlighting his own shortcoming in the tale, serves to show him in an honest light. Something this poignant and introspective has not been expressed since Benjamin Franklin wrote of his own failures of morality in his celebrated Autobiography over two hundred years ago.

The book is very well written and chronicles Arkansas political history in a way that lends new understanding to the politics of our time. Along the way the author regales the reader with story after story from his days as an attorney. The Civil Rights years and the Central High School intergration episode in Little Rock are extremely interesting chapters that shed further light on the town of Charleston and the way in which this volatile issue was handled there.

His political leanings were on hold during the years that he was struggling with the hardware store and juggling his work as an attorney. Eventually, in 1962, he ran for state office and lost. Licking his wounds he went on to try again, and by 1970 he ran against, and defeated, Governor Winthrop Rockefeller in his bid for a second term.

The book kicks into high gear when the Governor goes on to the United States Senate where he served for 24 years. Upon retiring from Government service he becme an attorney, associated with the Washington law firm Arent Fox. In January of 1999 he delivered the closing address in the Impeachment Hearings of President Clinton, which resulted in the charges being dismissed.

This is an insightful and highly readable book. It tells the story of America, and one man, during decades of struggle and change for America. That struggle continues today.

"Judgment at Nuremberg" with Spencer Tracy, Richard Widmark, Marlene Dietrich and Judy Garland

This landmark film, made in 1961, the same year in which Israel was trying Adolf Eichmann for Mass Murder, is a stirring production concerned with the responsibility we all hold toward one another as human beings.

The Chief Judge, played by Spencer Tracy, (William Shatner plays his Aide) has never been in the war, and is shocked by the devastation and destruction that he sees when he arrives in Nuremberg, which had been the seat of the Nazi Party. He is tasked with judging the defendants, all of whom were judges in Germany prior to, and throughout, the war. They were responsible for implementing the laws enacted by the Nazi Party. These laws included forced sterilization, denial of race mixing and other social programs that were all part of Germany's plans to exterminite Jews, Gyspy's and any others who did not measure up to the standards set forth by law.

The War Crime Tribunal is of the opinion that these judges should have stood against these laws, even if it meant the ends of their careers, and possibly their lives. From the perspective of the Defendants this would only have resulted in other, more pro-Nazi judges being appointed, with no question as to how they would have acted in implementing these laws.

Burt Lancaster is the German judge who finally comes to realize the damage done by the collective silence of his fellow judges. Montgomery Clift is brilliant as a victim of forced sterilization. Marlene Dietrich plays the widow of a German officer who has been executed for his crimes in a previous trial. Her home is now the residence of the American judge played by Spencer Tracy. From one another they learn just what a person will do, and how far they will go, in order to protect what is theirs. Sometimes it is not an easy call to make.

As Tracy struggles to understand just how the German people allowed the Holocaust to happen, he is confronted by the spectre of our own shortcomings as "victors" in the war. The German Counsel for the Defense, played by Maximilian Schell, is very adept at bringing to light our own nation's sins against our fellow man. Quoting from Justice Oliver Wendell Holmes and the American Constitution's "Seperate but Equal" clause, and invoking the horror of our own experiments with "Eugenics" in the late 1930's, usually against blacks and people with low IQ's, he brings stunning reality to bear on the questions of who is right and what is wrong. Does morality change with time and circumstance? Is there ever a real reason to commit Genocide?

This film is timeless in it's subject matter. When Richard Widmark gives his impassioned speech about the brutality of the Nazi's and the futility of Appeasment, one cannot help think about the current debate concerning Islamic Fundamentalism. When does tolerance become foolish? What lengths are acceptable to employ in wiping out evil? And mostly, what are our responsibilities as individuals in standing up to the things that would destroy us all.

The tension of the courtroom scenes, and the sharp direction of a tightly written script, along with superb acting and a timeless question of morality all combine to make this a "must see" film.

The Citizen's Constitution- An Annotated Guide by Seth Lipsky

This book is a must for followers of the Court. Carefully put together by Mr. Lipsky the book is laid out Article by Article and Amendment by Amendment with the history and thinking behind each one.

I took this book out because I have always been confused by the thinking that went into Roe v. Wade. It has always been my opinion that a woman's right to privacy, hence the choice to have an abortion, was well founded under the Third and Ninth Amendments of the Constitution. The Court found that right in Article 14, one of the so called Reconstruction Amendments.

And of course, my all time favorite Amendment is the 27th, which was proposed in 1789 and not ratified until 1992. It's about 30 words long and delienates the Compensation for Senators and Members of Congress. I don't do politics here, but this is some Amendment!

In short, for a guy like me, who has copies of the Constitution in the car, on my scan stick, and even by my reading chair in the TV room, this book is an indispensable tool for deciphering the intent of some of our most basic and controversial laws. Coupled with "The Oxford Companion to The Supreme Court" this book will see you through the 6 o'clock news and beyond.

Packing the Court by James MacGregor Burns

This is a very controversial and thought provoking read. The author is the Woodrow Wilson Professor Emeritus at Williams College (no relation) and is widely regarded as the most leading authority on the Ethics of Leadership.

His previous 20 something books include the outstanding “Roosevelt: Soldier of Freedom” which won a Pulitzer Prize. I read it and found it most insightful- both as to the man and the politics surrounding him.

This book begins with a 5 page Prologue which is so enticing you just have to read the book to see where he is going with it all.

The biggest Court Packer in history was Roosevelt with his attempt to “stack” the court by adding 6 more judges. The idea was shot down and FDR had to find a new way to launch his NRA, which had been struck down by the court. He did so in the form of the WPA and other agencies.

Mr. Burns proposes that due to the lifetime appointment of Justices to the Court, that there is a disconnect between what the country needs and what the Courts will allow. The NRA and Franklin Roosevelt are good examples. Sometimes change can take too long.

He also questions the apparent lack of a Review of all legislation by the Court prior to something becoming the law of the land. He states that this lack of review amounts at times to a lifetime Veto which is in direct opposition to the Powers of Separation which make our country so unique. And remember, this is only the Prologue!

The book goes on to review the various incarnations that the Court has taken over the 200 plus years that it has been in existence.

For instance, he reviews the Conservative Court of the 1920’s and compares them to the Liberal Court that reigned throughout the last 50 years until the current shift in the Courts’ decisions. Given the disparities in times and social moors I am not sure this is a valid comparison. To compare them is almost to refute the notion of having a “Living Constitution.”

At the end of the book he proposes changes to the Court and thus the Constitution, particularly Article 3, which outlines what the Founding Fathers thought prudent for a Supreme Court within the confines of a stable and workable government.

The book is fascinating and is wide in scope. It may take another read to fully comprehend all of the information imparted here before I rush to judgment on it’s merits or flaws. I am no scholar.

I do find that the idea of changing the way the Supreme Court operates disturbs me. Since the time of Marbury v. Madison this issue has never been entirely settled, although the decision remains undisturbed. Even with all of its flaws the Court represents to me the swinging pendulum of this Republic. At times we have swung too far left and at other times too far right. But we have never gotten stuck in either position. To me this is the embodiment of what is called the “Living Constitution.”

To add justices, or even have them elected to finite terms of office, appears to me as an attempt to politicize the Court. This is also true of Judicial Review of a law prior to it being enacted. It smacks of Populism.

If I have learned anything of the history of this nation it is that the Founding Fathers aims can more often be discerned by a careful review of what they did not include rather than a focus on what they did include.

A very provocative read for anyone interested in the Supreme Court; where it has been and where it might be heading.