"Nearly all men can stand adversity, but if you want to test a man's character, give him power."
-- Pres. Abraham Lincoln
From 'A Man For All Seasons':
William Roper: "So now you’d give the Devil benefit of law!"
Sir Thomas More: "Yes. What would you do? Cut a great road through the law to get after the Devil?"
Roper: "I’d cut down every law in England to do that!"
More: "Oh? And when the last law was down, and the Devil turn round on you—where would you hide, Roper, the law all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down (and you’re just the man to do it) d’you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety’s sake."....................................................
"To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times.
And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court."
--Justice Benjamin Curtis, 'Dred Scott' dissent
In 1857, the Dred Scott case came before the Supreme Court. Chief Justice and Democrat Roger Taney wished to wreck the new Republican Party and settle the slavery issue on terms favorable to the South. When the Court's majority under Taney asserted that the black man had no citizenship rights "that any white man was bound to respect", that was too much for Curtis.
Justice Curtis eviscerated the majority's opinion in his dissent.
Methodically, Curtis proved that the voting and citizenship rights of black freemen had been recognized by at least five states at our Founding; and that Congress had acted fourteen separate times under seven different presidents, beginning with Washington, to limit the spread of slavery in the territories.
As a matter of principle, he and fellow dissenter Justice John McLean then resigned from the court.
Why is this important to us today?
In the cultural waters in which we all now navigate, we're beginning to lose sight of the shoreline, our safety; the Constitution, for which our Founders labored so long and fought so hard.
Too many people assume that the proper role of judges is to wander the legal landscape, "doing good". As More told Roper, that is a pernicious, liberty-killing doctrine, contrary to the very concept of self-rule and the Consent of the Governed.
With the passing of Nino Scalia, a true giant, we barely even know what actual Constitutional jurisprudence--or jurists--look like anymore. Improbably, they tend to look like another giant, a big black man from Georgia. Curtis' dissent shows us what real Law and real judges look like. He makes his case by grounding it in the actual words and meanings of the Constitution--the "Actual" Constitution. He cites historical precedent, Congressional actions, The Declaration, The Federalist Papers, the state ratifying conventions, Blackstone's Commentaries, the Magna Carta. He quotes Washington, Jefferson, Madison and Morris.
You'll not find Justice Curtis cite a 'Living Constitution' anywhere. No deference will he give to any contemporary, unelected European tribunals, bodies to whom no American ever consented to be ruled. No sweeping pronouncements of Philosopher-Kings, such as the famed 'Sweet Mystery of Life' dictum:
"At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."
If that's in your Constitution, you may be French.
In Justice Curtis' wide-ranging dissent, he speaks of treaty law, limited government, the role of courts and of Natural Law... yet his penumbra never emanates.
So pause to remember what happened to our nation the last time the courts ran amok, "doing good" because they alone knew goodness, flattening all the laws in their mad rush to catch the Devil. It was disaster.
We don't need kings. We are fit to rule ourselves. We, the People are not moral ogres. We don't need to be shunted aside, our opinions discounted, words put in our mouths by those who wish to short-circuit the agreed-upon process. The whole purpose of Our Charter is stop such concentrations of unaccountable power.
The Court was never meant to be a Neo-Nitzchean "will-to-power"-grab by those who know what they want and mean to have it, and impose it on us by whatever wordy pretext is nearest at hand.
No. Let's make for that shoreline instead. Our safety. Our rock. Our beacon;
Our Constitution. Our Actual Constitution.