Oh, What A Tangled Web

ED: So help me understand something, guys. It just seems on the surface of things that the Supreme Court is undemocratic. There they are in robes, behind closed doors, interpreting law. Peter, did we mess up by creating the Supreme Court?

PETER: Well, Ed, our understanding of democracy is constantly changing. The key concept here is that of a people who declared independence and created the Constitution. And the Constitution’s a key thing. And it’s a statement for the ages about how their government will be organized for themselves and their children and their children’s children.

BRIAN: It’s kind of the operating system, isn’t it, Peter?

PETER: Yeah, you might say that. It’s a good way to put it. And when people get increasingly involved in ordinary politics and they get frustrated with the way the government is shutting down on their demands or that the Court is overruling their will, they say, well, hold it. We think there are a bunch of enemies of democracy who are hanging out in the Supreme Court, who are making life difficult.

ED: Yeah. So let me cite no less an authority than Abraham Lincoln on that front. He becomes president because he actually pushes back against the supremacy of the Supreme Court. This Dred Scott thing, he says, whoa, no, no, no, no, no. This is not what the founding fathers, whom he reveres, had in mind that all. This is the Supreme Court gone corrupt. And so Lincoln pushes back against this. So then, the whole Civil War, basically, is a constitutional crisis. Who’s in charge? And it ends up, the people with guns are in charge.

And that’s one reason that there’s a quote I want you guys to help me explain. So after the Civil War and Reconstruction, Thaddeus Stevens, the most outspoken radical, says this, in this country, the whole sovereignty rests with the people and is exercised through their representatives in Congress assembled. No any one official from the president and chief justice down can do any one act which is not prescribed and directed by the legislative power. So it doesn’t sound to me, Peter, as if people actually read the instructions manual for that operating system.

PETER: No, I think that’s right. And you’d look at the radical Republicans and say, well, who are these guys? Do they represent all of us? And I think that’s the problem. The most democratic branch, the most representative branch, is at best a fragment of the people at a given moment.

BRIAN: And it gets really interesting, guys, in the 20th century. Because certainly by the 1940s and the 1950s, we have these public opinion polls. They know exactly what’s going on. And guess what? Decisions of the Supreme Court reflect public opinion as measured by public opinion polls just about as well as Congress or the presidency does.

PETER: Maybe better these days, wouldn’t you say?

ED: So even though the Supreme Court is not on the hustings, they still know what people want?

BRIAN: You could make a good case, at least in the 20th century, that the Supreme Court is listening. And here’s a shocker– the men and women on the Supreme Court formed their opinions like the rest of us, and they move. I think the recent decision on gay marriage is a terrific example of that. The Court doesn’t have to be changed by inserting conservative here or liberal there for the Court to evolve in its thinking about key issues of the day. They, like us, read the newspapers and adjust.

PETER: But Brian, I got a problem with this formulation that we’re all agreeing on right now.

BRIAN: I knew you would. It’s too optimistic.

PETER: And that is when you talk about public opinion polls, what they reflect is not a unified will of the people. They reflect disagreement. And so what they also reflect is the possibility of managing and manipulating that opinion. And that’s what they’re all for. And I think that’s why there is such an incredible focus on the Constitution as this thing we all share that brings us together, even if it’s only in managing our disagreements. And I think that’s why the Court has such status and authority. I mean, it can frequently forfeit it by making stupid decisions, by running against the prevailing opinion of the times, but it continues to represent who we think we have always been, beginning with that fundamental act of self-creation.

BRIAN: And I hate to agree with you, Peter, but I have to admit the best evidence of what you’re saying is the very few times that the Constitution has been amended, if you think about the long history of the country. It’s not like we are willing to go in and throw out that operating system or change it very much very often.

[MUSIC – JASON GREEN, “NEW SET OF CONSTITUTIONS”]

PETER: That’s going to do it for today. But join us online and hand down your opinion on today’s episode. While you’re there, ask us your questions about our upcoming episodes on the history of the Republican Party and the history of women in politics. You’ll find us at backstoryradio.org or send an email to backstory@virginia.edu. We’re also on Facebook, Tumblr, and Twitter @backstoryradio.

And if you’re in the DC metro area, be sure to check out our live show about presidents and the press on July 19. You can reserve free tickets by going to the event page on Facebook. Whatever you do, don’t be a stranger.

BRIAN: BackStory is produced by Andrew Parsons, Brigid McCarthy, Nina Ernest, Kelly Jones, Emily Gadek, and Ramona Martinez. Jamal Millner is our technical director. Diana Williams is our digital editor. And Melissa Gismondi helps with research.

ED: BackStory is produced at the Virginia Foundation for the Humanities. Major support is provided by the Shiocan Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations. Additional funding is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment. And by History Channel, history made every day.

FEMALE SPEAKER: Brian Balogh is professor of history at the University of Virginia and the Dorothy Compton Professor at the Miller Center of Public Affairs. Peter Onuf is professor of history emeritus at UVA and senior research fellow at Monticello. Ed Ayers is professor of the humanities and president emeritus at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.

ED: BackStory is distributed by PRX, the Public Radio Exchange.