This is decision season (more about which anon) at the Supreme Court, so logic and the Constitution are in constant danger. Furthermore, we may have to refight the Civil War because the chief justice has affirmed a seditious doctrine about when this nation became a nation.
In his opinion in the Bob Jones University case, Chief Justice Warren Burger said, in passing, that racial discrimination in education prevailed, with official approval, "for the first 165 years of this nation's history," until the 1954 desegregation decisions. Subtract 165 from 1954 and you get 1789, the year the Constitution was ratified. But in 1863 the president said that our forefathers had brought forth a new nation "four score and seven years ago." Subtract 87 from 1863 and you get 1776.
Many secessionists had argued that the nation began in 1789 as a compact between the states that ratified the Constitution. They argued that what a state had freely entered into, a state could freely leave. Some Unionists countered, legalistically, that the Constitution's preamble begins, "We the people of the United States, in order to form a more perfect union," etc. Therefore, Unionists said, the Constitution was adopted by the people of the organic nation, not by the states.
Such terminological hairsplitting was not for Lincoln who, en route to his Inauguration, spoke at Independence Hall in Philadelphia. He said, "All the political sentiments I entertain have been drawn . . . from the sentiments which originated, and were given to the world from this hall. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence." He said it was "a great principle or idea" that had kept the country together.
Lincoln's definition of the idea ("that all should have an equal chance") was less important than Lincoln's premise that the nation was constituted by the prevalence of certain sentiments and feelings. A nation is not just words on parchment, or governmental arrangements, any more than it is just real estate. It also is, as Lincoln said two weeks later in his Inaugural Address, a matter of "bonds of affection."
His Inaugural Address was slightly inconsistent with what he was to say at Gettysburg two years later. In his Inaugural he said the nation was "formed in fact" in 1774 by the Articles of Association, was "matured" by the Declaration of Independence and was made "perpetual" by the Articles of Confederation (1778), which the Constitution superseded in order "to form a more perfect union."
But the nation, a thing of certain sentiments, preceded the Union, and is both cause and effect of "the mystic chords of memory" that unite Americans.
Edwin M. Yoder Jr., a Confederate remnant from North Carolina, writes a syndicated column here inside Union lines. He insists, with the elegance characteristic of him and the perversity characteristic of his turbulent region, that I am sunk in the mystical twaddle characteristic of Illinois boys. Yoder says the chief justice is wrong but the South was right. He says the nation existed before the Constitution, but the Constitution, by revising a flawed institutional arrangement, created a new order, and no one in 1789 thought a state's enlistment in the Union was inherently irreversible.
"Light Horse" Yoder and I may yet meet on the dark and bloody ground of some Antietam, locked in struggle over doctrines of disunion given fresh life by the chief justice. Until then, Will and Yoder are agreed about one measure that would make this a more perfect Union.
The Supreme Court, a great teaching institution of our national life, is squandering its teaching powers and contributing to public incomprehension by releasing too many important decisions during too few days at the end of each term. This nation's public philosophy is in large measure developed in Supreme Court opinions. The court is the place in public life where the role of reason is largest.
Even when it falls short of the exacting standards that properly apply to it, it is not just another arena where organized appetites clash by day and night. Even when it is the source of some heresy, such as the chief justice's, it is fascinating. But by erupting like Vesuvius late in each term, the court overloads the capacity of journalism to communicate the court's reasoning, and overloads the public's capacity to comprehend.
In the next three weeks there may be a dozen especially significant decisions. But in the rush, the significance of them may be missed by the public. The first reform the judiciary needs it could get from the top, from a spacing of Supreme Court decisions that would enable journalism to do justice to the court's attempts to do justice.