December 5, 2021

The Elastic Constitution

The Elastic Constitution

Throughout the country’s history the debate regarding the elasticity of the constitution has never been settled. Unfortunately, the arguments typically revolve more around patriotic grandstanding and less about substance. Politicians and even judges are all too eager to wrap themselves up in the idea of being a “strict constitutionalist” or an “originalist” as a way of rejecting opposing arguments. The “strict constitutionalist” argument has been used by all sides at different times in history sometimes for the good of the country, sometimes not. But the fact remains that the ideologies of the court justices have significant influence over constitutional interpretation and the Supreme Court has changed the course of the country both economically and culturally on an array of issues.

During the original arguments over the Bill of Rights one interesting detail that has remained sidelined in the archives of history was the possibility of an eleventh amendment. Corporate power was perceived as a destabilizing force and future presidents Thomas Jefferson and James Madison sought to “prohibit monopolies in commerce,” and reign in the “mischief of the powerful machines.” However due to the almost universal distrust in corporate power at that time and the belief that the current charter system served as an adequate check and balance, the amendment was not included. The views of the Founding Fathers appear antithetical to the corporate personhood ideology laid forth by Chief Justice Waite prior to the opening arguments of Santa Clara County vs. Southern Pacific Railroad in 1886. 

Another prime example occurred in 1892, when a 7 to 1 court decision fast forwarded the racial segregation that was sweeping the country. Arresting a man who was one-eighth black for entering a white only rail car was seen as constitutional in the eyes of seven Supreme Court justices. Consequently, the doctrine “Separate but Equal” was given legitimacy. It took nearly 60 years and over 5,000 lynching’s to reverse this decision. In the 1954 case of Brown vs. the Board of Education, all nine Supreme Court justices ruled “Separate but Equal” was unconstitutional ushering in a new era of discourse. 

The Supreme Court is the most powerful institution in the country, even more powerful than the president. Its ability to direct the path of the nation is profound, and can have lasting and far reaching implications. Time and time again a shift in ideology has manifested a shift in interpretation. Minimum wage was first seen as unconstitutional, only to be green lighted 15 years later, state sodomy laws were ruled constitutional in 1986 and are now seen as unconstitutional, and the right to privacy clause of the fourth amendment has undergone various interpretations throughout the years. The United States is an evolving country, and the Supreme Court justices have front row seats at the helm.