Don’t revert to the days of Dred Scott

GUEST: Sol Wachtler
VTR: 12/03/2004

I’m Richard Heffner, your host on The Open Mind. And I delighted, just the other day, in the realization that at least some very good things, people and ideas, too, don’t change. When I read in Newsday a particularly brilliant opinion piece titled “Don’t revert to the days of Dred Scott … Bush should pick judges who interpret the Constitution as a living document, subject to change”.

For the article reminded me of nothing so much as the equally brilliant comments made on this program in 1988 by Sol Wachtler, its author and my guest today when he was Chief Judge of New York State’s highest court, its Court of Appeals.

Today Judge Wachtler teaches Constitutional law at the Touro Law School and a particular concern of his, as he begins his article, is that “With President George W. Bush poised to make key judicial appointments; the ghost of Dred Scott has been resurrected. That infamous 19th century case upholding slavery has become part of the debate on which judges should be appointed and how they should behave. And this doesn’t bode well for the kind of court the President actually has in mind.” Well let me ask Judge Wachtler to explain his concerns a little more.

WACHTLER: Well, there is a school of judicial interpretation called the school of strict constructionism or orginalism, or trying to track the original intent of our Founders. And those jurists, Judge Bork was one, Ed Meese was the Attorney and he first articulated … he said that when we try to pick judges, we should pick those judges who define the original intent of our founders and apply that to the law.

And unfortunately the cite Dred Scott as an example of a decision which … where the Chief Justice, then Justice Tawney departed from that strict constructionism and instead used his own personal feelings. And nothing could be further from the truth.

HEFFNER: How can it be said then, Judge Wachtler?

WACHTLER: Well, they say it because if you say it often enough, people will tend to believe it. The fact is that Congress in the 1850s enacted a series of law to prevent the Civil War. And the series of laws tried to do away with slavery. So they said, in the new territories, the Missouri Compromise being one, there would be no slavery. Dred Scott was a slave. When the master of Dred Scott moved into the Missouri Territory, Dred Scott felt he was a free man, which indeed he should have been considered.

But the case went all the way up to the United States Supreme Court. And Justice Tawney, who, by the way, when he was practicing law represented abolitionists, so he wasn’t at all in favor of slavery, Justice Tawney said that it would be very nice if we could say that the Missouri Compromise was Constitutional, but he said we can’t because our Founding Fathers never intended to recognize African Americans as people. They were chattels, they were property and therefore once they were property, they would always be property.

And so Justice Tawney and the Supreme Court of that day struck down the Missouri Compromise and other enactments of Congress in the 1850s and went back to the original intent of our Founders and said that a black person is a slave. And that precipitated the Civil War.

Now when, when President Bush says that he doesn’t want Justices such as Justice Tawney, what he wants is a Justice who will go back to the original intent of our Founders; he is contradicting himself within the same sentence.

HEFFNER: But, you know … I, when I read your piece, I was so impressed with your revealing the contradiction, then I realized that we had discussed very much the same point back in the eighties … you say if you keep repeating … the big lie … I guess … people will come to pass over the intellectual contradiction.

But we’re talking now about members of your fraternity. We’re talking about highly intellectual lawyers, I’m not talking about George W. Bush, I’m talking about Robert Bork. I’m talking about Meese, who as Attorney General, certainly had a claim to knowledge.

WACHTLER: Well, you see, Robert Bork, and I have a quote from him … he, he said, “What is the meaning of a rule that judges should not change? It is the meaning understood at the time the law was enacted, what the ratifiers of the Constitution understood themselves to be enacted must be taken to be what the public at that time would have understood the words to mean.”

Now, for that reason, Justice Bork said there is no right to privacy because he says it was not in the Constitution. And therefore Griswold versus Connecticut which recognized the right of privacy … that is a person can use a contraceptive in his own home … he said was wrongly decided.

Roe v. Wade, of course, was wrongly decided because we have to go back to the original intent of the Founders. Well, that is absurd on its face. How would our Founders have dealt with cyberspace and the monitoring of communications, no one could know.

Take the laws of obscenity, for example. When the Founders wrote the First Amendment, they said “Congress shall make no laws abridging a free press.” During the time there was plenty of obscenity around. But they didn’t say, “except for obscenity”. Now, later on, when we developed our moral coil, we forgot the fact that Benjamin Franklin wrote a tract on how to select a mistress. We said, “No, no our Founding Fathers really did mean to protect all speech, except obscenity.” And we said, “Well, how do you know?” And they said, “Well, because they didn’t consider obscenity speech.” Well that’s nonsense.

But the point is that we did not go back to the intent of our Founders, we put our sense of morality, our sense of justice on those words to give them a meaning which would reflect our times.

HEFFNER: Judge Wachtler, I would nevertheless ask you …
can you find in your heart any sympathy for the position, any real understanding of the position?

WACHTLER: Absolutely. Absolutely. I can find understanding in the fact that if you go so far away from the intent of our Founders as to, as to violate the Constitution and the specific provisions of the Constitution, then you’ve done violence to a Constitutional form of government. But this is our entire Constitution … this is not only our Constitution, this is the Declaration of Independence and our Constitution and all of the Amendments.

In the original Constitution there was no Bill of Rights. They felt that the Constitution was simply something to limit the power of government. We didn’t want to have government taking over our lives. And so we limited it. Therefore, they said, what do we need a Bill of Rights for? If we didn’t give government the power to do something in the first instance, why should we say they couldn’t do something else? So, after the Constitution was finished, Thomas Jefferson in Paris was communicating with James Madison and he felt very strongly that we should have a Bill of Rights and that became an item of contention. Eventually … as a matter of fact, when they were debating the Bill of Rights, Noah Webster said, “How can we have a Bill of Rights … are we going to say that a person has a right to fish in a stream? A person has a right to lie on his right side unless he’s tired of lying on his left side? We can’t define everyone’s rights.”

And so they wrote the 9th Amendment. Let me read you the 9th Amendment, Richard. It’s, it’s just one sentence … because, because … I’m going back to answer your question in a moment … it says, “The enumeration in the Constitution of certain Rights shall not be construed to deny or disparage others retained by the people.”

In other words, what Madison was saying or what the, what the Bill of Rights was saying … was really George Mason, was saying … just because we’ve enumerated rights, we have deprived the people of all rights. They still have the rights that they had before. What could be more fundamental, for example, than the right to privacy.

On the other hand if we took that clause to mean every single right that they had before the Constitution they still retain … the right to slaughter pigs on your property and without regard to what your neighbor might think, it would be going to far and so we tried to truncate that without giving judges a carte blanche to say every right you had before you still have.

But that is, you know, original intent, you could say the, the Founders never meant to intend you could do anything before. So you have to read it a little bit more narrowly. But, it’s very hard to justify the strict constructionists.

HEFFNER: But you do, I’m sure, make use of the concept of original intent.

WACHTLER: Yes.

HEFFNER: Don’t you?

WACHTLER: Oh, yes. Of course.

HEFFNER: Did you … from the bench?

WACHTLER: Of course you do. Of course you do. You try to see certain of the liberties that were bestowed by our Founders on our people, those are certainly sacrosanct. In fact Thomas Jefferson said that’s the only immutable right …the right of liberty. And so, yes, that’s something you adhere to and you adhere to, to the limitation of Federal government power. You can’t let it run rampant. But you see the problem with a lot of originalists … you take Thomas and Scalia … the two jurists whom President Bush said he admires the most … they have taken certain parts of the Constitution and changed the meaning of them and even admitted they did so.

For example, the 11th Amendment, which says that a citizen of one state cannot sue another state. That all comes from a case called Chisholm versus Georgia. Mr. Chisholm was owed money by the State of George after the Revolutionary War. And so he sued the State of Georgia. Well, that was a great disgrace to have a citizen sue a sovereign state and so they enacted the 11th Amendment …. excuse me I said 11th, I meant 14th Amendment … no it was the 11th, the 14th was applied in Chisholm … it was the 11th Amendment that was finally enacted. And the 11th Amendment said very simply that a citizen of one state cannot sue another state.

HEFFNER: How have we changed that?

WACHTLER: Well it’s been changed by a … when the case came along … Alabama versus Garrett … I’m sorry … Alabama versus Garret … in that case a woman had breast cancer and the ADA, the Americans With Disabilities Act had been passed … and so this woman took advantage of that act which said you could sue your state for discriminating against you for your disability. And so she sued her state of Alabama and Alabama said, “Well you shouldn’t be able to sue this state because of the 11th Amendment.” And she said, “Wait a minute, the 11th Amendment said you can’t sue another state, I’m suing my own state.” And Scalia and Thomas, the original intentists said … and Rehnquist all said, “Well, really the Founders meant that you can’t sue your own state either.”

They misread it entirely. They misread it literally. They misread the intention, they misread everything.

HEFFNER: But now, wait a minute, when they say “meant” are you saying what you object to is that the precise words are distorted, or that the idea behind those words has been re-interpreted by Scalia and company.

WACHTLER: Both. Because if you look back at the case of Chisholm versus Georgia you can see … and if you read the history at the times, the newspaper articles, the outrage of the states, the only expression was, “We don’t want citizens of another state ….” Because, mind you, this was a … all a discomfort for all these 13 states being welded together.

Now the prime kind of insult is to have the citizen of one of these states suing another state. So this was a great shame and that’s why the 11th Amendment was enacted. Specifically.

Now by changing the meaning, this Supreme Court, this conservative Supreme Court has declared more acts of Congress unconstitutional than any other Supreme Court since the New Deal. And here we have a President saying I want judges like this because those judges are not activist judges, those judges take the law as they see it and interpret the law as they see it. Not only did they declare all of this legislation unconstitutional, but they became great activists by re-writing the 11th Amendment.

HEFFNER: What would you have be the guideposts for the judiciary in terms of the interpretation?

WACHTLER: Great judicial restraint. I happen to not believe in activist judges. I was not an activist judge on my 20 years on the bench. I tried very, very much to leave most decisions to our legislative bodies; our … in New York State our Assembly and Senate, and in the Federal realm, the Congress.

HEFFNER: Why?

WACHTLER: Because they are elected by the people, they reflect the will of the people; they have to stand for election and if they don’t do the right thing by the people they can be thrown out. Whereas judges have a kind of immunity. And they shouldn’t take advantage of that immunity by trying to be legislators themselves. On the other hand, if a legislative body does something which is contrary to the Constitution or contrary to liberty rights, then I think the, the courts have a right to say “Whoa, you know, we can’t have the majority doing everything because sometimes the majority can be very, very oppressive to the minority.”

And so therefore, we have to have some kind of guidelines which, which keep the legislative bodies in check. That’s the beauty of our system, the three branches of government. But deference should always been given to the legislative bodies.

HEFFNER: I’m puzzled by that matter of deference. Weren’t the Founders and I’m not talking now just about our Constitution, but I’m talking about those who created this nation and its principles. Weren’t they concerned with the balance of power and weren’t they concerned that the judiciary should be there just as much as the legislative branch?

WACHTLER: Well, that …

HEFFNER: Just as much as the executive branch?

WACHTLER: That’s debated by Constitutional scholars because Marbury versus Madison where John Marshall extended the judiciary scope to interpret legislation, we weren’t too sure of that. But that certainly is the law today.

And certainly judges have to do that. Sometimes they make terrible mistakes. One of the great disgraces in our judicial history is, is Lochner versus New York where the New York State legislature …

HEFFNER: Child labor?

WACHTLER: Yes … the New York State legislature … well actually it dealt with bakeries and the bakery union … but the New York State legislature unanimously passed a law which limited the work day from 12 to 10 hours. And it went all the way up to the United States Supreme Court. This was done for safety measures and it was done for the health and it was done because the bakery was selling bread and … to the citizenry and they wanted to protect the citizenry … it was certainly within the police powers envisioned by the Constitution.

United States Supreme Court said, ‘No, you’re interfering with private enterprise, you can’t do it.” That was an outrageous decision; it’s since been, been long overruled. So sometimes the courts go too far in trying to mess around with legislative enactments which they should not do.

On the other hand, this Supreme Court has, has already declared unconstitutional great portions of the Federal Labor Standards Act, the Age Discrimination in Employment Act, the Americans With Disabilities Act … all on the grounds that citizens should not be able to sue … even though Congress gave them this right … their state in the Federal courts.

HEFFNER: Judge Wachtler suppose one were to say, or to claim that this position on the part of this Supreme Court reflects contemporary attitudes. How does that conform with your own position and the piece that you just wrote?

WACHTLER: I can’t believe …

HEFFNER: Which asks for that.

WACHTLER: Yes. I can’t believe that our contemporary attitudes would say that we should go back to the Founding Fathers intent with respect to African Americans. Would our contemporary standards say that Black people are not people?

HEFFNER: No, no, no. That’s not what … you’re perfectly free to raise those questions, but that’s not a response to my question which has to do with your statistics, your figures on what the current court has done …

WACHTLER: Yes.

HEFFNER: … and I’m simply asking whether it could not be that the current court reflects contemporary attitudes?

WACHTLER: Oh, well they … but, but the reflecting contemporary attitudes is not the measure … it’s reflecting a contemporary sense of justice and morality consistent with our Constitutional principles. You can’t distort it.

Now, I’ll give you a perfect example. The most activist decision I think ever in the history of the United State Supreme Court was Bush versus Gore. I mean there they went into an area which is, which is completely reserved to the States … that is administering their own elections. They went in there and they stopped a count of votes and they mandated a, a … through an equal protection argument which no one can understand, that somehow or other there was an equal protection violation and therefore the vote should stop and George W. Bush should be declared President. I mean this was outrageous, so outrageous that they, themselves, in their decision, said “Don’t use this decision for precedent for anything else.”

HEFFNER: That was pretty good.

WACHTLER: Pardon?

HEFFNER: That was a pretty good one.

WACHTLER: Yes. But, but you see, that is … if you want to talk about … when, when President Bush says “we are a nation of laws, not of men”, there never has been a decision which illustrated the opposite more graphically.

HEFFNER: What does this then say about where America stands in terms of its understanding of the balances of power?

WACHTLER: Well, you know …

HEFFNER: … the separation.

WACHTLER: … America gets a great deal of its impressions from, from really talk radio and a lot of other things. Rush Limbaugh for years has been saying “We have no right of privacy, despite this, this 9th Amendment; despite Griswold versus Connecticut …

HEFFNER: It’s Judge Limbaugh …

WACHTLER: [Laughter] Rush Limbaugh … [laughter] … the, the …

HEFFNER: I’m only kidding.

WACHTLER: Yeah, I know that. See, it’s hard for me to kid about Rush Limbaugh. But he’s been very definitive, in fact, I understand that he was critical of my article about Dred Scott. He was very critical, though, about the right to privacy until his right to privacy was assaulted in a recent litigation in Florida. Then he joined hands with the ACLU and is saying, “I have …”, this is a quote, “I have a Constitutional right of privacy.” This is the same man who several years ago said, “Anyone who insists on a right to privacy has something to hide.”

Now, so long as we get our information and our knowledge and our temper from people who are really misleading the public, then the public is going to be dissatisfied. So long as we cloak everything we do by saying, “This is what our Founding Fathers wanted us to do and therefore we’re doing it”, and that suddenly lends an air of legitimacy, then we’re in trouble.

We have to look again to what the Founding Fathers really wanted to preserve in the Constitution. We have to look at precedents because that who we are a system of precedents, and we have to be regulated by not sudden revolution in court decision, but evolution with respect to changing laws, with respect to developing laws and with respect, again, to reflecting a contemporary sense of justice and morality.

HEFFNER: Could a justifiable judicial approach, or judicial philosophy derive from the readings of the Constitutional Convention? Do you think that it would appropriate to study … not the Constitutional itself, but equally much … the debates?

WACHTLER: Oh, absolutely. And they’re fascinating. They’re fascinating. When you read the debates around the 13th and 14th Amendments after the Civil War where they, where they tried to extend liberty, where they try to recognize all people, all citizens as being created equal, that was the first time.

To read … let me give you an illustration, Richard, that always struck me. We all know what the First Amendment said with respect to free speech. And we all know that when they wrote the Constitution, they were very, it was very important that the press be able to criticize government. After all, Thomas Paine set the pattern for that by criticizing the crown. So we wanted the press to be able to express itself freely. Seven years later when people in public office, when we’re now a nation, were criticized by the press, they passed the Alien and Sedition Law.

So if you want to know what the original intent was, these are the people who were the original manifestations of that intent. These are the same people who wrote the Constitution. So they didn’t feel that the words in the Constitution were that immutable that they couldn’t be changed to meet certain exigencies. But again how far you change it and how long the change lasts is something quite different.

HEFFNER: How different?

WACHTLER: Well, it depends on what the change is and how profound it is. For example, I read parts of the Patriot Act … now, I show you … this is the Constitution and the Declaration of Independence … this is the Patriot Act … the print being just as fine. And there are parts of the Patriot Act which cause me great concern. Doing away with one of the fundamental precepts of our freedom and that is, due process of law. And depriving citizens of certain rights like, like the sacred writ of habeas corpus, this is frightening stuff. And I think when you wander that far away and by the way I think that even this United States Supreme Court is of a similar mind … they’re …. aah, pronouncements …

HEFFNER: It has indicated that already.

WACHTLER: Yes, yes, it has, it has. So I think that there is where Congress steps way out of bounds and there is where the Supreme Court is compelled, by virtue of our Constitutional principles to pull them back.

HEFFNER: To be activist.

WACHTLER: To be activist. Exactly. To be activist in certain areas … you know, activism in protecting the Constitution is a very sacred right and privilege of the court system.

HEFFNER: Would every Justice you have criticized for being activist … offer that as an explanation?

WACHTLER: Yes. And, and by the way, you see when I say I’m against activist judges, or I don’t think judges should be activists, what I’m trying to say is that in many instances they will always be. Judges will be activists and the same judge will be a strict conservative, a strict constructionist … depending upon the case and the set of circumstances.

Every case is different, every case is unique. You can’t draw broad brush when … as, as Ed Meese tried to do, as Judge Bork tried to do, as the President has, has done …but I don’t think the President really, you know, grasps the full significance of saying that “we want strict constructionists”. I think that every judge … Scalia, who is a brilliant jurist … I think there are times when he is a judicial activist … certainly in Bush versus Gore he was. And there are times when he’s a strict constructionist. And I can give you examples of that.

But to say that, that a judge should be an activist in all things, or a strict constructionist in all things, I think is a terrible mistake.

HEFFNER: Sol Wachtler, I appreciate so much your joining me again today. Obviously since we discussed this issue decades ago … and now … you’ll have to come back … decades from now and we’ll continue the discussion.

WACHTLER: I hope we’re both around. Thank you …

HEFFNER: I hope so, too.

WACHTLER: … very much, Dick.

HEFFNER: Thank you. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.