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Thursday, October 11, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of Brennan Vs. Rehnquist: The Battle for the Constitution

Goodreads | Eric_W Welch (Forreston, IL)'s review of Brennan Vs. Rehnquist: The Battle for the Constitution:


Peter Irons is anathema to Chief Justice Rehnquist, for Irons is the person  who discovered the audiotapes [book:May it Please the Court|556611] made during Supreme  Court pleadings, edited them and  released them to the public. They  make fascinating listening. It is just amazing  to hear Thurgood Marshall responding  to questions put to him  by the justices in Brown v. Board  of Education.  Probably no two justices had  less in common judicially than William  Brennan and William  Rehnquist. The duels between them are explained and set in  context by Peter Irons in his study of several hundred cases.  In only two did Rehnquist and  Brennan agree.

All of the cases but seven related to conflict between  government and the individual.  Brennan voted against the  government in each; Rehnquist  always voted for the state.  Irons summarizes the philosophy  of each justice. Brennan constantly referred to the dignity of the  individual; Rehnquist rarely did, instead applying the term  “deference'” when discussing the relationship of the individual to the  majority represented by the state.  Brennan’s training as a Catholic  and his exposure to the “social  gospel” of the church explain his  devotion to “justice and fair play  and simple human dignity.” He  linked the Declaration of Independence  to “God-given inalienable  rights” that stemmed from the  truth of Christian faith. Freedom  from the “absolute state” was the  message he learned from his religious  training. The Due Process  clause of the fifth amendment as  applied by the fourteenth was designed to limit governmental authority  and to protect “life, liberty,  and property.” The American Revolution represented a rejection of  the prevailing assumptions of colonial  social hierarchy, which provided  governmental officials a  great deal of arbitrary authority unchecked  by law. Brennan also believed  the role of the court and the  Constitution was to protect minorities.  The Borkian position that all  substantive matters could be  solved by a majoritarian process  was not valid, argued Brennan.  The principle of majority could not  “rectify claims of minority right that  arise as a response to the outcomes  of that very majoritarian  process.” He decried the “facile  historicism” of conservatives, especially  Attorney General Meese,  who insisted that the meaning of  “due process” was frozen in 1787.  That position “establishes a presumption of resolving textual ambiguities against the claim of constitutional right,” and “turn[s:] a blind eye to social progress [and displays:]  antipathy to claims of the  minority to rights against the majority.”  Rehnquist consistently applied a standard that was unabashedly  majoritarian. The individual was subservient to the majority, and  civil disobedience in support of any moral position was wrong. He had argued since his law school days  that no moral position can be supported  rationally. “Neither idealism of purpose nor self-proclaimed moral superiority on the part of the  minority qualifies in the slightest  way its obligation to obey the law,”  he said.

An analysis of votes in more than 1200 votes and 164 signed opinions reveals that his votes were guided by the following three principles: the individual loses in a conflict with the state; conflicts between state and federal government were always resolved in favor of the state level; and lower level courts should always  have jurisdiction when in conflict with federal courts. The role of the government is to enforce the will of the majority, by force if necessary.  It’s ironic that Rehnquist, labeled  a conservative, would promote the interests of the state while Brennan, the liberal, consistently sided with the rights of the  individual against the state monolith. But that’s the problem with  labels.


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