Weekly Wire
Weekly Alibi Expanding Democracy

By Steven Robert Allen

MAY 24, 1999: 

The Warren Court and the Pursuit of Justice Morton J. Horwitz (Hill and Wang, paper, $10)

From a modern perspective, the U.S. Constitution seems to have been flawed from its inception. The Founding Fathers created a governmental framework which legitimated slavery and allowed only rich, white, landholding men to take part in the electoral process. The privileged group that the framers of the Constitution sought to protect from tyranny was relatively small and insulated.

Despite these flaws, our Constitution has proven flexible enough to adapt to changing times. The constitutional framework of our government has allowed theories of liberty, equality and democracy to evolve over time so that public life in America has gradually become more inclusive.

The Supreme Court is the final interpreter of our constitution. Many of the most elegant debates over the direction, design and theoretical underpinnings of American society have occurred in decisions passed down by the Court. The various methods used to interpret the text of the Constitution are central to understanding the way the judiciary functions in our democracy. Over the years, many interpretive methods have developed. There are two methods in particular, however, that illuminate the uniqueness of the Court that operated under Chief Justice Earl Warren from 1953 to 1969.

The first interpretive method, called originalism, seeks to discover the original intentions of the men who created the Constitution. This method is inherently conservative because it attempts to apply 200-year-old ethical standards to modern society. Originalism is also fraught with technical obstacles. How does one determine the states of mind of men who have been dead for centuries? Each individual lawmaker may have had different reasons for choosing to incorporate specific language into the Constitution. Sorting out those various motivations can be an exercise in futility.

The second method of interpretation views the Constitution as a "living" document. Under this methodology, Justices allow themselves to expand the meaning of Constitutional provisions, sometimes beyond the original intent of the framers, so they correspond with modern societal ethics and beliefs. The danger is that this could conceivably open the door for appointed justices to make (rather than simply interpret) the law of the land, thus controverting the will of the elected Congress.

All this gets even more complicated when one considers that many experts believe that the most important role of the Supreme Court is to protect the rights of minorities against the tyranny of the majority. Throughout most of U.S. history, Justices have simply rubberstamped the actions of Congress. This often meant steamrolling over the rights of marginalized groups.

The Supreme Court under Warren went further than any other Court in history in protecting the rights of minorities. The Warren Court expanded democracy in the United States by upholding democratic norms that we now take for granted--desegregation of schools, protection of voting rights, the broad right to freedom of speech, the right to an attorney in criminal proceedings, etc. The major Warren Court decisions could not have been made if the Justices had not viewed the Constitution as a living document, which to remain relevant must adapt to a changing society.

Justice William Brennan summarized the Warren Court's theory of constitutional interpretation succinctly: "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." For the first time in history, the Supreme Court used this adaptability to protect the rights of "the weak and the powerless, the marginal and the socially scorned." Since the Warren Court's demise, the Court under Chief Justice Rehnquist has returned to using so-called originalist interpretative methods. Consequently, the rights of marginalized groups have been dramatically curtailed.

Horwitz, a professor at Harvard, does a fine job of summarizing the major Warren Court decisions and exploring philosophical conflicts between the various Justices. He places the Court in a clear historical context and, most importantly, introduces the general reader to the crucial political theories which come into play in Constitutional interpretation.

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