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Indiana Judges Association: 'You can't eat the Constitution'

David J. Dreyer
December 4, 2013
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ija-dreyerSometimes judges face dilemmas that go beyond the rules. When the problems go past where the law stops, what happens? The endeavor of judging includes balancing the letter of the law with the conscience of the community. Oftentimes, judges can work in between the cracks and resolve a tangible issue by intangible means. But since when do judges get credit for that?

The only United States Supreme Court justice listed from Indiana is Sherman “Shay” Minton. He was a zealous New Deal defender and became famous for his “You can’t eat the Constitution” speech during his 1934 Senate campaign, when he argued that urgent human needs of the Depression outweighed any unconstitutional aspects of the New Deal.

Minton finished at the top of his class in high school (New Albany), college and law school (both Indiana University), and won a Yale scholarship for a master’s in law. He was known as an aggressive debater, a challenging intellect on public issues and an active participant in public affairs. Former President William Howard Taft, his Yale teacher, once reprobated him during a vigorous case discussion by saying, “If you don’t like the way it is interpreted, you will have to get on the Supreme Court and change it.” (Both of them took this advice.) He was a captain in World War I, a U.S. senator, aide to President Franklin Roosevelt, a judge on the 7th Circuit Court of Appeals, and nominated to the Supreme Court by his friend Harry Truman. Yet he is consistently considered mediocre among Supreme Court justices, mainly due to his lack of notable opinions and his brief seven years on the high court. But shouldn’t Minton, like all judges, merit credit for things the statistics don’t show?

Today, the mark of the judiciary is all too often divisiveness – not because judges are necessarily at odds, but because the public is more used to seeing ideological confirmation hearings than informative discussions on jurisprudence. But when Minton was nominated to the Supreme Court in 1949, the Senate Judiciary Committee asked him to testify about his 1930s Senate views defending court restructuring. In those days, Supreme Court nominees ordinarily did not appear before Congress or have contentious confirmation hearings. So Minton refused the request by politely explaining that his judicial role would necessarily be distinguished from his previous Senate work and should not be compared. The committee quietly withdrew their request, and Minton effectively precluded the kind of partisan court confirmation fights that we now are unable to stop.

Today, popular court justices often make headlines for socializing and duck-hunting with their executive branch buddies while appeals are pending. But Minton’s low-key personal life was affected by his resentment of racial discrimination in the 1950s. His trusted African-American aide always drove with him between New Albany and Washington. On several occasions, Minton became angry and confrontational with hotel and restaurant establishments along the way who would not allow his aide to enter.

And within the high court, where neither the public nor academics know how things are really decided, Minton was known as an essential team player and peacekeeper. As a Democrat progressive senator, Minton surprised some by his inclination toward judicial restraint. Historians conclude that he carried the cause for New Deal legislation when it was needed to persuade a “conservative” 1930s court. In the 1950s, he decided that more caution was necessary to balance the emerging “liberal” justices. But a judge does not get credit for the wisdom of consensus-building.

His character and courage were most evident in the famous Brown v. Board of Education decision. As the junior justice, it fell to him to vote last. At the time, the vote appeared to be 4-4. On one hand, Minton’s visceral aversion to racial injustice was unqualified. Within private court conferences, he spoke vehemently against the effects of segregation on children and the whole country. On the other hand, his jurisprudence required a more cautionary decision. Minton reportedly cast the deciding vote for the most progressive Supreme Court ruling in history. But what statistics will never show is that he was the key justice in persuading all his colleagues to make Brown unanimous.

Like most judges, Shay Minton’s achievements were numerous, but largely unmeasured. His biographer Alan T. Nolan once wrote, “He was a man without a sense of his own importance and was utterly unable to take himself too seriously.” Today, we sure do need more people like that. Justice Felix Frankfurter once said that if Minton is not remembered as a great justice, he should always be remembered as a great colleague. What better compliment can any person have? When he died in 1965, his memorial service in Washington D.C., was conducted by none other than Thurgood Marshall, a public testament to Minton’s private significance.

Well, if we need great legal minds, there are plenty of them. But if we are hungry, we can’t eat the Constitution. We will always need good thinkers to nourish creative solutions. We should be grateful this Thanksgiving season that we will always have committed judges to solve tough problems, find the right balance, and lead us every day.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  • Cynical much?
    "You cannot eat the constitution" sounds like a cynical perspective toward the rule of law. In other words, in a national emergency the rule of law goes out the window, so that some strong man like FDR, Tito or Obama can rule with an iron fist, albeit allegedly benevolent? Is that the upshot here? If so, please consider those who fear such cynicism could cost us everything ... PROF JONATHAN TURLEY: Thank you, Mr. Chairman (Congressional hearing). The danger is quite severe. The problem with what the president is doing is that he's not simply posing a danger to the constitutional system. He's becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch. This Newtonian orbit that the three branches exist in is a delicate one but it is designed to prevent this type of concentration. There is two trends going on which should be of equal concern to all members of Congress. One is that we have had the radical expansion of presidential powers under both President Bush and President Obama. We have what many once called an imperial presidency model of largely unchecked authority. And with that trend we also have the continued rise of this fourth branch. We have agencies that are quite large that issue regulations. The Supreme Court said recently that agencies could actually define their own or interpret their own jurisdiction. (House hearing, December 3, 2013)

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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