Who Owns the Constitution?

With Republicans in power, equal protection under the laws will continue to diminish

The conscience of this nation is the Constitution. Supreme Court Justice William O. Douglas


On September 17, 1987, I was privileged to be in the audience at the Association of the Bar of the City of New York when Justice William Brennan, who had become the conscience of the Bill of Rights on the high court, gave the 42nd Annual Benjamin N. Cardozo Lecture.

That lecture, still available in the archives of the Association of the Bar of this city, should be read by members of Congress and every law student and law professor in the country—as well as by every judge, from local housing and family courts to the U.S. Supreme Court.

Titled "Reason, Passion, and 'The Progress of the Law,' " Brennan's emphasis on what he called "the human reality of the judicial process" is even more vital now that the Rehnquist Supreme Court has prioritized economic rights and the rights of individual states over the rights and liberties of individual Americans throughout the country.

Moreover, since George W. Bush is very likely to name the next chief justice of the Supreme Court as well as one or two other replacements before the end of his second term, it is crucial for leaders of the Democratic Party, including future presidential aspirants, to do more than obstruct Bush's nominees. The Democrats have to tell the country what theircriteria are for the Supreme Court and other life-tenured federal judges—instead of mechanically objecting to nominees for being "out of the mainstream."

In New York, in 1987, Brennan emphasized that the framers of the Constitution made "a sharp break with the past and its assumptions of a natural social hierarchy. They saw government as a contract formed by the individuals of the society with each other, instead of a mutual arrangement between rulers and ruled."

Therefore, due process—fairness—the basis of our system of justice, "now applied to allofficials [very much including judges], commanding them to treat citizens not as subjects, but as fellow human beings. In short, due process requires that the rulers and the ruled acknowledge their common humanity, and that official judgment always remain human judgment."

During the Warren Court (1953 to 1969), William Brennan was Chief Justice Earl Warren's closest adviser and confidant (Brennan joined the Court in 1956). This was the Court that created furors by declaring unconstitutional segregation in public schools by individual states and insisting on the federal due process constitutional rights of criminal suspects and prisoners—and in other ways, was often focused on what Brennan called "the essential dignity and worth of each individual."

In his later years on the Supreme Court, William Brennan was a frequent dissenter because he saw less and less concern—on the Rehnquist Court—for "the essential dignity and worth of each individual."

I got to know Justice Brennan during many months of researching a profile of him for The New Yorker—and afterward. He never lost his conviction that his passion for individual rights and liberties would eventually be regenerated on the Supreme Court because, he said:

"The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs."

To give you one example, among many, of how far the Rehnquist Court has departed from "the essential dignity and worth of each individual," there was its majority ruling in the case of Patricia Garrett (University of Alabama v. Garrett, 2001).

Patricia Garrett, a supervising nurse at the University of Alabama's medical center in Birmingham, was transferred from her position—and demoted—after having been treated for breast cancer. When she sued, the Rehnquist Supreme Court (5-4) agreed with Alabama, on the basis of states' rights, that employees of that state are not protected, even under the Americans With Disabilities Act, if they are discriminated against because of a disability.

Arlene Mayerson, directing attorney of the Disability Rights and Education and Defense Fund, said, "The majority decision sets a new low in equal-protection law," despite the "Fourteenth Amendment guarantee of equal protection of the law."

Democrats have to alert the citizenry about the radical change by the Rehnquist Court in "federalism"—how power over individual lives is shared between the national and state governments. (See my column last week.) As Howard Gillman, a Supreme Court specialist at the University of Southern California, warns, the issue of federalism has become "the biggest and deepest disagreement about the nature of our constitutional system. . . . At some level, the country will eventually decide which of these two visions will triumph."

In 1986, Justice Brennan, speaking in New York to the American Bar Association's Section of Individual Rights and Responsibilities, said:

"We do not yet have justice, equal and practical, for the poor, for members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses, for the unrepresented consumer—for all, in short, who do not partake of the abundance of American life. . . . The goal of universal equality, freedom, and prosperity is far from won and . . . ugly inequities continue to mar the face of the nation. We are surely nearer the beginning than the end of the struggle."

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