Skip to comments.Griswold V. Connecticut -- Justice Black's Dissent
Posted on 10/14/2005 1:27:57 PM PDT by You Dirty Rats
I repeat, so as not to be misunderstood, that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.
I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification.
(Excerpt) Read more at straylight.law.cornell.edu ...
Hugo Black was appointed by FDR and after confirmation was discovered to be a member of the KKK. He was a died-in-the-wool liberal who supported the New Deal on the Court, and a champion of Civil Rights. Yet he was the one who most powerfully dissented in Griswold, and in this dissent pointed out better than anyone else just how dangerous the decision was -- to the Courts AND to the country. His prediction of an unconstitutional shift in power to the Courts was, sadly, accurate when Roe v. Wade was decided.
Also, outside of being a police court judge for 18 months, he had no judicial experience. Yet his opinions were clear, as you can see if you read his whole dissent.
Black's career and positions on many different issues make the case that SCOTUS Justices are hard to predict.
If you have a little time, click on the link and read Black's complete dissent. The opinion of this New Dealer and Liberal, ironically, turns out to be one of the best examples of originalist philosophy that I've seen in recent years, IMHO.
This case and Black's dissent has always fascinated this amateur Constitutional Law buff. It was a big topic in Bork's hearing. Then there is Goldberg's ridiculous overreading of the Ninth Amendment which, thankfully IMHO, has not been adopted.
I think Roberts as well -- although he said Griswold was settled. Clearly, a nominee who opposed a decision that ruled laws banning contraceptives are unconstitutional would be demagogued into defeat. I guess it's easier to demagogue a birth control pill than a french fry.
Okay, I'll say it. That sucks.
I meant to have a question mark on that first sentence...
Good post. One does not have to be a conservative to be an originalist, and being a conservative does not mean that one is an originalist.
Three of the four Republican appointees on the court at the time - Warren, Harlan, and Brennan - all voted with the majority. We have no way of knowing how Miers would vote.
Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible. uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.
Justice Black was certainly prophetic here.
As Robert Bork has said, decisions like Griswold and Roe have a very ugly lineage:
Good post. Thanks.
The leading case is Marbury v. Madison. The Supreme Court has the jurisdiction over cases and controversies involving the Constitution, and thus has the implied role of gatekeeper not to enforce laws that controvene the Constitution in cases that come before it. Otherwise the Constitution would be meaningless if the Congress could just ignore it.
Justice Black was a Roosevelt appointee and a Klan member -- I'm not sure I trust his opinions on anything.
I mentioned in the original post that he was an FDR appointee and a KKK member. He was also a New Deal Liberal and fought for the court-packing scheme while in the Senate. Yet, ironically, he is perhaps the one Justice of the 20th Century who was the most wedded to the actual text of the Constitution.
It's not a question of trust. Do you agree with his dissent in Griswold?
Even as late as the sixties there was still some respect for the Constitution among some older liberals. I'm afraid that's been pretty much erased by a combination of time and indoctrination by leftist law professors.
Look at the U.S. Senate back in the sixties. The Democrats had numerous conservative members among their ranks, plus some moderates. Even the liberal Democrats included senators such as Henry Jackson and Jennings Randolph who supported the U.S. military and were anti-Communist. Look at them today. Ben Nelson of Nebraska is sort of moderate, but the others are all leftists. Occasionally you can peel one or two off on some individual issue. Lieberman is Jewish, so sometimes he'll vote sensibly on Middle East issues. Others cast an occasional conservative vote to appease folks back home, but only on proposals that are sure to pass anyway. 22 'Rats voted for Roberts, but only because the GOP senate had the votes to pass him with or without their votes. A Democrat senate wouldn't have confirmed him.
Among the 45 senate Democrats (I'm including Jeffords) there's not a single conservative Democrat left, and only one moderate. Men like Hugo Black are history. The Democrats have purged most of them. We'll never be pleasantly surprised again by a Democrat judicial nominee. The last one to do that was Byron White, a Kennedy appointee, who went on the court a few years before the Democrats began purging non-leftists in the late sixties. Only a judge who disrespects the Constitution could earn a Democrat appointment today.
It's the GOP we have to worry about. Why does a professed conservative and constitutionalist party keep giving us Warren, Brennan, Blackmun, Powell, O'Connor, Kennedy, and Souter? All those judges were (or are) far to the left of many judges the older Democrats gave us.
Here's hoping that Miers is a true constitutionalist!
Correct, they are independent of one another and should be. You can even (if you look hard enough) find raving libs who believe Roe was bad law. It makes the case, yet again, why Harriet Miers alleged conservatism and evangelical background are not relevant. Her non-evident judicial philosophy is.
Again, this goes to the difference between personal/political views and a judicial philosophy. If a potential judge follows an originalist view of Constitutional interpretation, his/her political beliefs become nearly irrelevant. This is not to say that occasionally they can't be influenced by their personal political views or that two judges holding the same judicial philosophy can't come to opposite conclusions on some issues (see Scalia's and Thomas' opinions in the Gonzales v. Raich medical marijuana case - one of the few times I've been disappointed with a Scalia opinion). However, with a long-standing philosophy of the way in which the Constitution should be interpreted the Justice is less likely to experience the type of "growth" we've observed in Justices without a consistent philosophy, i.e. O'Connor and Kennedy. I have yet to see ANY evidence of a Miers judicial philosophy, which is, I think what is most troubling to actual thinking conservatives (as opposed to "Trust me" conservatives).
In fairness to Hugo Black, he was a pretty good judge. I think he did stretch certain constitutional passages beyond their breaking point (the Commerce Clause) to uphold some popular federal legislation. I guess that's why FDR put him on the court. But he did respect popular sovereignty to a good degree and didn't hate the Constitution. He didn't feel himself to be a philosopher king entitled to mow down any law he didn't like under the guise of "updating the Constitution to fit modern times". If he were on the court today he'd be to the right of most of the sitting justices and not much to the left of Scalia & Thomas.
As for his KKK membership, it occurred in the twenties, at the height of KKK power. The Klan then controlled the Democratic Party in several states. If you wanted to run for office in a Democratic precinct, you sort of had to pay your KKK membership dues. Harry Truman did it in Missouri, though he reportedly claimed that the $10 annual dues were too high. As ridiculous as it seems today, joining the KKK before filing to run for office was similar to joining the Kiwanis club in some parts of the country. Black's KKK involvement was largely token membership necesary to get his foot inside the political door.
Still, it did lay the foundation for latter decisions like Roe, and Roberts' support encourages some skepticism about his attitude towards judicial activism.
Another of Justice Black's wise statements:
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' view of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation". (Emphasis added)
With such a clear expression of his sense of fidelity to the Framers' Constitution, Justice Black's lack of "judicial experience" seems inconsequential, doesn't it?
Even the Framers of that Constitution probably wouldn't have passed the artificial standards being set by Coulter, Kristol, and others. A search of the backgrounds of those men would reveal that of the 55, only 31 were lawyers. According to Wikipedia, "The educational background of the Founding Fathers was diverse. Some, like Franklin, were largely self-taught and had received scant formal training. Others had obtained instruction from private tutors or at academies. About half of the individuals had attended or graduated from college in the British North American colonies or abroad. Some men held advanced and honorary degrees."
When I was in law school, our class had the opportunity to meet with Justice Black in his chambers and to pose questions. Justice Black stated that he was motivated by his distrust of an all powerful big government.
It was the Vietnam war that brought about the change. It discredited the establishment, patriotic & anti-communist of Democrats, opening the door for the moonbats to take over.
Great post, comments. Informative, educational. Thanks.
And yet FDR appointed him to make sure the power of the Federal Government would be greatly expanded.
What I find interesting in the history of "substantive due process" is that many of SCOTUS's rulings that relied on this concept were eventually overturned. It happened with Dred Scott and many of the New Deal legislation; will it happen with Roe?
Griswold was legislation, pure and simple.
The Supreme Court ruled Connecticut's law unconstitutional because they wanted to and they could. It had nothing to do with the Constitution then, and it has nothing to do with the Constitution now.
The power claimed by the Warren Court in Griswold is unlimited, in fact illimitable.
The Republic cannot survive the existence of a Court with this power.
It's that simple.
Because if the Congress passes and the President passes an unconstitutional law, the Constitution is meaningless unless the court declares it unconstitutional. We might as well just tear up the document.
I think judicial review of constitutionality is perfectly rational and a key part of the checks and balances built into our constitutional system from the beginning. The problem is the elastic concepts like fundamental rights, substantive "due process" and equal protection, which are so elastic that the court can try to make policy decisions according to their social and political predilections.
That's all very nice and good, but the Constitution does not give the Court that power.
Griswold was legislating from the bench, plain and simple.
I just wanted to see that repeated.
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