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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. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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