Strengthening Constitutional Self-Government

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Getting ready

Edward Whelan tells us what to expect during the Roberts hearings, as does the NYT’s Linda Greenhouse, who provides a kind of primer of possible challenging questions. Senate Judiciary Committee Chairman Arlen Specter offers a glimpse of his opening statement.

Paul Rosenzweig regards the hearings as a "redundant ritual," orchestrated to please the interest groups. Nevertheless, Democrats think they have something to gain in the hearings:

Democrats are likely to use the televised hearings that begin Monday to accomplish two more modest goals: to retool their party’s message and to set the stage for the struggle over O’Connor’s successor.

"More than anything else, they want to lay down markers for what would be acceptable or unacceptable in the next vacancy," [Progressive Policy Institute Senior Fellow Marshall] Wittmann said. "That means there will be an intensification of the questions they will ask Roberts because they know they will be sending signals to the administration about the next nomination."

Our two major dailies offer different larger contexts for the hearings. The Washington Post gives us a
long article about Roberts’s Supreme Court appellate practice, which suggests that he has accepted a certain discipline that might have taken him some distance from his fire-breathing conservative days in the Reagan Administration. The New York Times decides that it’s appropriate, in effect, to speak ill of the dead by dredging up items used to attack William Rehnquist in his confirmation hearings. Given what the Post tells us about Roberts’s preparation habits and a previous article about "sherpas," it’s highly unlikely that Roberts will be blindsided the way Rehnquist was. So why retell that story? Perhaps the Times wants to remind its readers that Republicans were on the "wrong" side of some civil rights issues.

Discussions - 6 Comments

Professor Knippenberg, I’m not sure what you were referring to when you conluded your post above. You mentioned that the Republicans were "wrong" on certain civil rights issues. Are you referring to Rehnquist’s statement, when he wrote, "I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by ’liberal’ colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed."

Now I understand that he later retracted this, but in the context of what you wrote above, it seems as if you were endorsing this(especially in view of your quotations marks). Please clarify.


The 14th amendment is problematic for two reasons. One relates to state sponsored segregation, while the other relates to its validity.

The Congress that wrote the 14th amendment (or maybe it was the next Congress) also passed a statute expressly mandating school segregation in Washington, D.C.. It seems impossible to reconcile the idea that the 14th amendment was intended to end state sponsored segregation with this action. The only way around it is holding that the federal government can still discriminate but states cannot, this seems most plausible due to the langauge of the amendment.

Near the end of the civil war there was a dispute whether Southern States had committed "suicide" by secession. Lincoln dismissed the question as too metaphysical, but it is not in the context of the 14th amendment. Congress required each state to ratify the 14th amendment before it would recognize the state, but if the state no longer existed then this ratification is not valid. It would seem that the amendment did not receive the required support. Furthermore, even if the states did not commit suicide, it hardly seems proper that duress was used (the military ruled until the 14th amendment was ratified) in order to secure ratification. No contract would be upheld in such situations, so it would seem difficult to argue that the 14th amendment was validly ratified. As far as I know, no court has dealt with these issues, and of course no court would invalidate the 14th amendment because of these concerns.

In the world of results-oriented jurisprudence, it is politically difficult to adhere to the "rule of law" if adherence doesn’t produce the desired result. It is difficult to explain to people who are not strongly committed to the constitutional process (to theright, as opposed to the good) why they should adhere to a process that doesn’t produce the results they are convinced are right and good (or rather right because good). Rehnquist’s supposed support for Plessy tells us nothing about his view of racial justice, though many of his auditors would likely have been unable or unwilling to follow his argument on behalf of this distinction. Since the piece in the Times does not even contemplate the possibility that a good outcome may not be mandated by the Constitution, that achieving it might actually be up to the legislature, the most plausible purpose for dredging up this incident was to remind readers that Rehnquist (Roberts’s mentor) was willing to obstruct racial progress.

If true, the old allegations about the
illegitimate ratification of the 14th
Amendment are sufficient for a truly
honest Supreme Court (if we ever get
one) to strike the 14th Amendment off
the books and invalidate all SC rulings
based thereon.

Let it be rewritten by Congress, in a clear manner this time, and resubmitted to the (50) states. If they
don’t ratify, try again.

Professor Knippenberg, thanks for the reply.

Since terms such as results-oriented jurisprudence, judicial activism, originalism, etc can have a variety of meanings in different contexts, perhaps we can focus on Plessy. Do you think this case was correctly decided? If so, do you think Harlan’s dissent was more in the spirit of a results-oriented jurisprudence?

I’m not familiar with the allegations David referred to, so will have to pass on that.


You can see the allegations in my comment, comment 2. 14th amendment might not have been meant to apply to schools, and even if it was it might not have been validly ratified.

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