Noah Feldman Quotes
Every generation gets the Constitution that it deserves. As the central preoccupations of an era make their way into the legal system, the Supreme Court eventually weighs in, and nine lawyers in robes become oracles of our national identity.
Feldman, Noah. Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. Twelve, 2010.
Cummings was arguing against a Constitutional amendment. His alternative led to Roosevelt's court packing schema.
The president was asked if he supported the Supreme court's school desegregation decision:
It is argued whether Scalia’s problem was that the Supreme Court was doing something new or radical or the country had changed. He had certainly lived through the greatest transformation of any society and culture on earth at a pace of change that far exceeds anything that has occurred before. Scalia is one who believes that the Constitution should not be interpreted in recognition of these changes, but should be immutable as it was written for the late 18th century. Most judges and legal scholars disagree and try to interpret the Constitution as the founders would have intended, knowing what we know, having the tools and powers we have, and facing the problems of the modern world. It represents a major legal and philosophical debate.
Referring to the Brown v. Board of Education, the Topeka, KS, Supreme Court school desegregation decision:
He uses the term, “Non-interpretivism”, in a judge’s decision to indicate a judge who does not accept the interpretation of the Constitution as written and intended by the framers. His bias is a conservative one and this is how he views decisions that he does not like. When liberals see an opinion with which they do not agree, they also very often accuse the judge of activism and not adhering to the framer’s intentions. Generally it is a question of “whose ox is gored?”
From this quotation, {615902} and {615901} it is clear that the framers of the Constitution intended the treaty making powers to be shared by the President and the Senate. In practice, in modern times treaties are usually initially negotiated by diplomats under the supervision of the President and the Senate gets to concur or not in the ratification process. However, there have been a number of treaty failures including the League of Nations where the lack of coordination has resulted in a situation where the Senate had to accept or reject something which the President had negotiated and the Senate rejected the treaty.
This quotation is particularly important because it summarizes one of two opposite schools or thought regarding judicial interpretation of the Constitution that politicians have been arguing about since the Supreme Court first sat. The other is Original Intent where only the original intentions of the writers and ratifiers of the Constitution should be considered—assuming that it can be determined.
The Chief Justice at the time was an ultra-conservative judge, who together with his 8 colleagues—all conservative—had blocked much of the democratic and progressive legislation that the Congress had passed. FDR had a much different legal and philosophical view of the Constitution than the Chief Justice, and the court would declare much of his New Deal legislation, passed in the emergency of the Great Depression, unconstitutional. Almost all of those “unconstitutional” things were years later passed again and this time a more modern court found they were Constitutional.
Noah R. Feldman is an American academic, author, columnist, public intellectual, and host of the podcast Deep Background. He is the Felix Frankfurter Professor of Law at Harvard Law School and chairman of the Society of Fellows at Harvard University. His work is devoted to constitutional law, with an emphasis on free speech, law & religion, and the history of constitutional ideas.
