CONSTITUTIONAL CONVERSATIONS
One of the Mysteries About the Constitution
by
- E. Boyd, Esq., “Miss Constitution”
Last week Miss Constitution took us on an aerial view of the Constitution and noted the common-law countries of which we are one. The common law represents a culture’s experience over time, and this experience is reflected in judicial decisions going back to Hebrew, Egyptian, Greek, Roman, Anglo-Saxon, and German law, among others.
This is the basis of precedent, or judicial deference to past judicial decisions. Statutory, or legislative law, often refines common law in keeping with current issues and modern customs. Common-law countries recognize precedent as important empirical measures of how to craft legislation that will benefit society over time and pass judicial review. Civil law countries, most of Europe, rely solely on statutes or codes so don’t have the judicial protection that the common law gives us to weigh, in part, whether a current trend comports with what we know about human nature over time. Our judges take “the wisdom of the ages” into consideration when deciding specific cases or declaring certain statutes unconstitutional. It is a very important and powerful judicial responsibility.
This mix of common law and statutory law, along with the Constitution and administrative rules, makes up Positive Law, one of four bundles of law that we are called upon to obey. It does create confusion for the ultra-ideological Supreme Court watchers. Our Supreme Court Justices, unelected as they are, operate within what Miss Constitution calls the Doctrine of the Black Robe. It is one of the mysteries that applies to the Constitution. When the Justices arrive at Court from home, they go into a robing room and thereby transform themselves from ordinary citizens into impartial, non-political, players on a great stage for their short minute to add their decisions to our accumulated experience.
The Justices are to forget who appointed them; they are to forget their own biases; and they are not to be swayed by mobs of the passionate one way or the other. No Justice should be a “sure” vote in lockstep with any group of Justices. In deciding a case the Court has agreed to hear, each has one eye on the common law, and one eye on any statute passed by an elected legislative body, and one eye on protocol, and one eye on due process, and each might come out with a slightly different opinion. Ultimately, they all should keep both eyes on the deference owed to the other branches of government and to the understanding that since they are not elected they should not be setting policy or reaching for outcomes no matter how powerful and ugly the politics of the moment are. Our Supreme Court is our precious link to the past. It is our precious link to what the past can teach us about how to assure our nation a better future.
Miss Constitution does not expect other nations to understand our system. She does expect that our own citizens should be taught from a very early age, history, philosophy, civics, and economics, so that when decisions come down from the Court that some find offensive they will understand that there is much that goes into a decision that they might not be aware of. This would help the public understand and appreciate judicial restraint. Judicial restraint is nothing more than the importance of what is not done; of what is not moved forward; of what is left for time to reveal. How does one explain to other cultures that sometimes what is thought to be “progress” is not really progress but rehashed attempts at consolidating power that have been going on since Hammurabi? Our system cannot work, and our social fabric cannot withstand assaults on its strength without a knowledgeable citizenry. As Justice Oliver Wendell Holmes, Jr., tells us, we “must know something of that past to know the law now.”
Copyright©2019 M.E. Boyd, Esq., “Miss Constitution”
MissConstitution@comcast.net
