“It
has long, however, been my opinion, and I have never shrunk from its
expression...that the germ of dissolution of our federal government is in the
constitution of the federal Judiciary;...working like gravity by night and by
day, gaining a little today and a little tomorrow, and advancing its noiseless
step like a thief, over the field of jurisdiction, until all shall be usurped.”
Thomas Jefferson
It’s actually very
seldom that a Constitutional issue is pure black and white. Home Building &
Loan Association v. Blaisdell (1934), was one of those rare cases. In an
attempt to stem home and farm foreclosures, Minnesota passed a law which
allowed a mortgagor to pay court determined rent that was set well
below the contractual mortgage amount. The mortgage holder could take no
foreclosure action while the rent was being paid.
The
Constitution reads, “No state shall pass any law impairing the obligation of contracts.”
During the Constitutional Convention in 1787, foreclosures were rampant, and
several states had passed laws that impaired contracts by forcing debtors to
accept purposely inflated state-generated paper money as legal tender. The
result of these laws put a stranglehold on credit markets, deepening difficult
economic times. The Framers didn't want this to happen again. Their intent—and
the wording could not be clearer—was to preclude the exact type of action that
was taken by Minnesota.
Minnesota’s
violation of the Contracts Clause could not be more blatant, yet the Supreme
Court arbitrarily overrode the Constitution and gave the states permission to
violate private contracts. Because the decision had national implications, the
result of this sanctioned contract interference chilled the nation’s credit
markets. Lenders could no longer rely on recovering the collateral that backed
a loan. The Supreme Court’s action was heartless because its sympathetic
treatment of a few borrowers helped to deepen and elongate the Great
Depression, which caused enormous suffering for a great swath of the
population.
There
is another aspect of Blaisdell which makes it a monumental decision: it started
the modern trend of looking at the Constitution as a living force that could be
molded to meet popular passions. The Constitution had certainly been violated
in the past, but the basic meaning had not been irrevocably altered. Once the
floodgates had been pried open, the judiciary progressively stretched their
political powers. The Supreme Court discovered
that when they overruled constitutional clauses, they suffered
only a few complaints, while the other side cheered the courts. The FDR
courts and those that followed now had license to ignore the wording and intent
of the Constitution. From that point forward, what the courts said was law.
Getting
Back to Basics
Restoring
the Constitution to substantiality won’t be easy … or quick. For one thing, the
selection of a Supreme Court Justice has become a highly charged emotional
event. It’s instructive that political movements spend an inordinate amount of
resources influencing Supreme Court nominations, and hyperventilate when fighting
a nomination they’re don’t like. Everyone knows that these are enormously
powerful people—with life tenure. Everyone also pretends their candidates are
impassive judges that measure every decision by the law, but if that were so,
no one would care who sat on the bench.
The
only way to repair our Constitution is with justices that have a deep-seated
loyalty to the founding principles. Since presidents typically appoint based on
political leanings, it will be up to the Senate to advise the president on acceptable candidates, and then consent only to candidates that can show a life’s work of being faithful to the
Constitution. If Constitutional integrity is going to be restored, the weight
of the task will be on the Senate.
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