Roberts, Jefferson, Lincoln, and the Fifth Republic of America
"This Court is the judge of its own power."
- First Monday in October
Nominee Roberts. We don't know all that much about Roberts, the man. We have heard his record recited, but I look into his eyes, see his earnest yet friendly face, and wonder - who is he?
After the first day of televised testimony, we have not learned all that much. We have heard Senators tell us what they think the Court is like and it reminds me of celibate Priests at the nuptials telling us what makes a great marriage.
What makes a superb Chief Justice? To listen to the learned solons, he is the Chief Umpire in an arena where the Republicans and Democrats strut and fret.
Senators pontificate about what Roberts should say or should not say and how he should conduct himself. I am sure this is more for the cameras and the folks back home than for Roberts who I assume is his own man. I assume that someone who would be seriously nominated for the Chief Justice would know a thing or two about how to deliver legal opinions without personal prejudices leaking out and does not need advice from senators on how to do that.
This process of choosing the Justices has changed as the nation moves away from the mortals who crafted the Constitution of 1789. Were they merely men?
In 1961, John Kennedy entertained American Nobel Prize winners at a gala dinner. He said,
this is the greatest collection of talent and genius gathered at the White House at one time since Jefferson dined here alone.
Through the lens of time, the Nation's Founders take on Herculean proportion, yet as conservative writer, Dan Smoot, once remarked in his famous "American's Promise," it was a remarkable task that mortal men from so many different interests were able to compromise to craft a truly remarkable document.
We all remember the story from high school - the Constitution 1789 was somewhat of a happenstance. A Constitutional convention was called to make some adjustments to the Articles of Confederation that had been in force since 1781. Instead of a small fix, a new Constitution was drafted.
What Smoot and other have understood was that at its best, our constitutional process is not a zero-sum-game. How do we define a zero-some-game? It is a state of affairs where to the extent someone wins, all others lose - like in sports. Like where there is an Umpire to make calls on rules of physics. The Founders understood the desirability of win-win compromises, although in politics these are the products of genius.
Take for example the interest of states with large populations versus small populations in 1789. There was tension as to how the States would be represented and a bicameral legislature was proposed - we see it in the Mother Country - Lords and Commons. We all know the senior chamber, the Senate, has two senators per State while the lower chamber is based on population. Not exactly a zero-sum-game.
We only have sketchy stories of how this all came about as it was decided there would be no official stenographers at the proceedings, but many issues - especially slavery - threatened to take the whole business apart.
Were these men just plain smarter than we are today, or is it as Smoot poetically suggests, there was a divine presence at these proceeding?
For every "original intent" there was another, perhaps equal, "original intent" that the framers compromised on. For example, the smudge in the Constitution is it recognized slavery as a just institution. But the slave states wanted slaves counted as population for congressional districts. But slaves were property and there were factions that did not want them counted at all under those circumstance. Hence the compromise was struck - blacks were thee-fifths of a person. What was the "original intent" there?
Slave owners? These are the godlings we all but deify and whose names we speak in hushed voices? Or were these men of flesh and blood and human foibles who made decisions based on greed and power and who had to compromise on that "curious institution?" Conflating these two pictures - men of compromise and men of ambition - certainly goes to the heart of the American mythos.
And out of these proceedings came the Supreme Court. From what accounts survive the Constitution of 1789, it was not a hotly contested issue, some would quip "almost an afterthought."
John Jay was appointed by George Washington as its first Chief Justice and some say that Jay "created" the Court as the third branch of government, although there are those who would not be so sweeping in their view. Nevertheless, the Court emerged as the interpreter of the Constitution. Even though most of the Framers were around - and many held high office - Jay's Court was the first to tell them what the Constitution meant.
It was Gore Vidal who said this Nation has had five Republics. There was the Republic of the Founders. Then Jacksonian Democracy. Lincoln changed the Nation remarkably, well beyond the Founders, and finally there was the New Deal - that is, until Reagan and the Fifth Republic. Interestingly, all cite the Constitution of 1789 as their justification.
Is the Court going to assert itself as the third branch of the government or will it merely clear the ideological way for the Fifth Republic to work its vision on a nation that will be 230 years old next July?
Lincoln is quoted,
I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country; corporations have been enthroned, an era of corruption in High Places will follow, and the Money Power of the Country will endeavor to prolong its reign by working upon the prejudices of the People, until the wealth is aggregated in a few hands, and the Republic is destroyed.
No foreign power or combination of foreign powers could by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years. At what point then is the approach of danger to be expected? I answer, if it ever reach us it must spring up from among us, it cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen we must live through all time or die of suicide.
As a citizen what I want to hear is Robert's view of the Fifth Republic and to what extent is the art of compromise part of how the Fifth Republic runs, and whether the rights we had under the Fourth Republic will be preserved as the Fifth Republic unfolds.
He owes us that much and we owe it to ourselves to flush out those answers.