Earlier this week, we discussed the excerpts of Edmund Burke’s Reflections on the Revolution in France. In class, tradition was one of the most common words used to describe modern conservatism. As a conservative, I would have to agree that this is true, especially in our strict interpretation of the United States Constitution. With that being said, Burke’s emphasis on using tradition to aid decision making, throughout history has not always produced positive results. Burke’s argument surrounding prejudice is the perfect example of how people in power have used tradition as a mask to implement or continue to enforce discriminatory policies.
The Judicial Branch was originally supposed to be the weakest of the three branches, as discussed in Alexander Hamilton’s Federalist Paper No. 78. The Supreme Court is unable to raise/spend money, build up our nation’s defense or use the military to enforce their rulings. The Justices were left with the job of only making judgements. Furthermore, the Justices who are nominated by the President and appointed by the Senate, do not have term limits, to ensure that their only commitment is to the Constitution of the United States and that their focus is not that of Congress, who’s main concern is to be reelected.
With that being said, the Judicial Branch over the course of our nation’s history has proven to be more powerful then the founders had initially anticipated and the realm of politics has certainly made its way into their Court room over the years. Some of this has occurred by the Court’s own doing, like in the case Marbury v. Madison (1803), where the Court under Chief Justice John Marshall, expanded its own powers with the establishment of Judicial Review. Also, some of the bias in the Courtroom can come from forces outside the Justices themselves, considering some of the most politically driven people in Washington both nominate and appoint said impartial judges.
The Supreme Court has both original and appellate jurisdiction, however, almost all cases come under appellate jurisdiction. The Court will grant certiorari through the process of deciding which cases are justiciable. Typically the Court tries to ensure that: there is real contest, the cases are not moot, that the cases are “ripe” enough and that each party has standing.
Referring back to Marbury v. Madison (1803), Judicial Review enabled the Court to use both precedent and a similar principle called stare decisis, which means “let the decision stand.” The Court, like Burke, uses tradition and past rulings to help them make decisions on current cases. The Court has a valid argument in choosing not to automatically turn over every law that has had its constitutionality questioned. If the Court were to do this, certain laws would be unconstitutional one year and then constitutional the next. As mentioned earlier, the idea of appealing to precedence and tradition has its place, but has also proved problematic. Some laws that are explicitly unconstitutional, are upheld because of certain personal or political biases the Justices may attempt to cover up with reliance on tradition.
The best example of this would be the struggle many African Americans faced in seeking equality under the law soon after the end of the Civil War. The Reconstruction era began with aggressive Republicans in Congress, who were quick to pass the 13th, 14th, and 15th Amendments. Taking another step towards equality they passed the Civil Rights Act of 1875 which banned racial discrimination in public accommodations. However, the 1876 Presidential election, with disputed votes from Florida, gave neither candidate Samuel Tilden (D) or Rutherford B. Hayes (R) the majority of the electoral votes. In the end, a deal was struck, in which Hayes and the Republicans benefited from a Presidential win, but only if they were to put an end to the Reconstruction Era.
What resulted from this halt in social reform, was a series of cases referred to as the Civil Rights Cases (1883). Taking a giant leap back, the Court ruled that Congress didn’t have the authority to ban racial discrimination and that this legislation was up to the states to create and enforce, under their “police power”. The CRA 1875 was ruled unconstitutional because it was based in the 14th Amendment, which according to the Court, allows only states to regulate discrimination in non-state/private entities (hotels, movie theaters, etc).
The infamous case Plessy v. Ferguson (1896), allowed the Court to use precedence and tradition as an excuse to perpetuate discriminatory behavior based on a citizen’s race. The Supreme Court upheld the Louisiana law, by ruling that the 14th Amendment was put in place to simply enforce equality, not erase racial discrimination. They argued further that segregation, like in this case with a separate train car for African Americans, doesn’t make one race superior to the other, but is actually treating each group equally because their group’s “tangible resources” are the same.
It took about sixty years for the Court to rule differently. The landmark case of Brown v. Board of Education (1954) involved eight year old Linda Brown and her family. The Court unanimously struck down the Kansas law that allowed segregated schools. They argued that originalist forms of thinking that were used in previous cases regarding segregation, no longer fit the new and popular practice of universal public education. Drawing on the rhetoric of Plessy v. Ferguson, the Court ruled that such “tangible factors” like school buildings and textbooks, although similar, do not show the effects that segregation has on students. Therefore, the decision to strike down the Kansas law gave rise to the idea that segregation by definition is unequal.
Although these court rulings were historic, just because the Court rules it to be unconstitutional doesn’t mean everyone is willing to immediately follow it. Many of these rulings did not go without resistance and forms of protest. A lot has been accomplished since the Brown v. Board of Education ruling and the passage of the Civil Rights Act of 1964, in terms of legal protection for men and women of all races and in terms of acceptance of the unfair treatment they endured.
However, some groups of Americans are still not protected equally under the law today, for example, LGTB community. As American citizens, a person’s sexual orientation should not determine their equal protection under the law. As a nation, we should use our rather unflattering past when it comes to racial inequality as a form of “tradition”, to learn from our mistakes as a nation and stop upholding discriminatory policies and deeming them acceptable. Clearly, the Supreme Court has played an influential role in the shaping of America, and will continue to, whether we like it or not.
With the help of historical hindsight, we are able to see today how relying on tradition in certain circumstances is not always productive or righteous. The bottom line is, we can refer to tradition in aiding our decision making, but we cannot hide behind it as a means of protection from things that make us feel threatened or uncomfortable. Like Burke, I am a conservative that recognizes the importance of tradition, but unlike Burke, I not only recognize that change will occur, but realize that sometimes it is absolutely necessary.