Lawrence Goldstone's new book, Inherently Unequal: The Betrayal of the Equal Rights by the Supreme Court 1865-1903, looks back at another period in history, when he says a series of Supreme Court rulings undermined social progress in the country for decades. Goldstone writes about the post-Civil War era, when union troops occupied the South, and four million former slaves were looking for social equality and economic opportunity. It wasn't clear, initially, whether they would enjoy full-fledged citizenship or would be subjugated by the white population.
In an interview last week on Fresh Air, he said, "This is a continuum. This isn't a question of two absolutes. This isn't a question of you either follow the Constitution absolutely, positively, immutably, or you throw the Constitution away and just decide what you think. There are cases - most cases, of course - where a justice will go to the Constitution or another statute and say this is what the statute means. My problem is people anointing themselves as the only authority. In fact, every judge is an activist. They are doing their best - we hope they are doing their best - to interpret the law in the way they think is the most objective. Now, in practice, of course, it tends to be more subjective. But the idea that nine justices of varying political persuasions are getting together in a room, and one of them is saying I think the Constitution means this and the other one's saying I think the Constitution means that, and coming to majority vote, I think that's just fine. The issue is not whether or not we throw the Constitution out. Of course we shouldn't. And the issue is not whether or not we simply make laws out of the air because we like the social import of them. No, we shouldn't do that, either. But we should also recognize that people who read the Constitution differently than we do are not necessarily subverting the law, but are simply seeing the law in a different way than do we. And I believe that if we could start doing that and looking at views counter to our own in some reasonable way and not just assume nefarious motives by people who disagree with us, we might be farther along as a country right now."
I have been thinking...hoping we all cannot be wrong. While I don't subscribe to the right, I need to believe they love this planet as much as I do.
Credit cartoon from 2.28.11 issue of The New Yorker. Edited transcript of Fresh Air from broadcast 2.24.11. Intro is edited from the Fresh Air intro. I would add, that Dave Davie's interview was really quite brilliant - excellent insight and questions.