Discussing the Supreme Court and Constitution

On Monday, September 19, faculty members from Colgate and other universities addressed the relationship between the Supreme Court and the Constitution in a panel discussion organized in observance of Constitution Day.

The Center for Freedom & Western Civilization, Arts of Democracy, and the Dean of the College co-sponsored the event, which included a panel of four speakers: Professor of Political Science Stanley Brubaker, Associate Professor of English Phil Richards, Cornell Professor of Government Jeremy Rabkin, and Western Michigan Professor of English and History John Saillant.

Professor of Political Science Robert Kraynak introduced the panelists and began by explaining Constitution Day’s rather brief history.

“A law was passed last May by Congress requiring all colleges and educational institutions that receive federal funds to set aside September the 17th of every year henceforth, till the end of time, dedicated to the United States Constitution,” said Kraynak.

Brubaker was the first panelist to speak; his discussion, “The Theories of Constitutional Interpretation” involved the various ways in which the Justices of the past and present interpret the text.

Two particular schools of thought he mentioned were “Originalism” and the theory of the “living constitution.” The former prescribes a strict interpretation of the Constitution as an unchanging text – whose advocates include Justices Antonin Scalia and Clarence Thomas. The latter view posits that the Constitution ought to evolve and change with the times.

Saillant’s presentation, “Race, Citizenship, and the U.S. Constitution,” focused on the repercussions of interpreting the document too strictly. He cited the infamous Dredd Scott case as support of his view.

The Dredd Scott Decision was a case about a slave whose master brought him to a free territory who subsequently sued for his freedom. The Supreme Court ruled against Dredd Scott on the grounds that he wasn’t a citizen, and therefore did not have a right to sue in Federal Court.

Saillant connected the ruling with the view of Originalism.

“I think Dredd Scott is a good lesson in the potential dangers of Originalism,” he said. “[Chief] Justice Taney thought he was being an Originalist, and in fact was an Originalist in a certain sense, but he needed better sources. He needed a better understanding of what earlier laws than the Constitution had said – some of his claims being absurd in the face of the language of the Constitution.”Richards – who helped organize the event – talked about the reaction to the Constitution by artists of the time.

“The underlying social assumptions, by which the nitty-gritty political issues are based, were in a process of shift,” he said. “Many intellectuals – many artists – saw this shift as dangerous. They saw this shift as leading potentially to chaos. So, to a certain extent, the intellectuals, the novelists, thinkers such as Kant, were saying: we’re a little bit afraid of the world of the Constitution, a little bit afraid of what it meant not to move away from an older set of values. I’d like to dwell on that question today.”

Rabkin discussed the relationship between international law and the Constitution. He posed the question: should we take international law into account when interpreting the Constitution?

He maintained that there has been an increasing tendency for Justices to do so – especially those of the more liberal persuasion–and that they justify their decisions on the assumption that the rest of the world is “progressing.”

Rabkin argued that the opposite could be true.

“But what if a lot of countries were backsliding? What if a lot of countries were retrogressing? Of course there is sometimes retrogression – we’ve seen it done!” Rabkin said.

Rabkin said that incorporating International Law into Supreme Court decisions undermined the purpose of having a Constitution.

“What does it mean to have a Constitution? It is a hedge against a later generation backsliding. It’s saying now at the beginning let’s get this clear there’s going to be freedom of speech, right? Why do we put that into the Constitution? It’s to protect against a later generation from forgetting that that was important,” he said.

During the Q&A period, Pat Kabat ’06 questioned Rabkin’s analysis. He argued that foreign opinions and idealisms are respected and edified domestically.

“It seems to me that it’s difficult to draw that line, especially considering how much – not in simplistic terms of how we interpret our Constitution in terms of International Law right now, or particular laws of the country – but the approaches to jurisprudence. We teach our American scholars Austinian stuff sometimes. It’s difficult to unpack those sorts of intellectual relationships, and it seems to me – bearing that in mind – it’s difficult to call these progressive notions localized, ” said (?).

After the event was over, Kraynak seemed satisfied.

“The Constitution does have a text which is objective, but it is also true that we have, within the context of an objective written text, we Americans have debated and fought over the interpretation of that text, and that’s what presently lies behind the battles over the courts. I believe that point came out tonight: that was my main goal tonight,” Kraynak said.