What About the Marshall Court?
Re Karen J. Greenberg’s “Political Scripture” [Feb. 25/March 4]: It strikes me as surprising that Professor Greenberg makes no mention of the role of the “founding era” Supreme Court in answering the questions that Jonathan Gienapp’s book, The Second Creation, raises—that is, what kind of instrument was the Constitution, and how was it to be interpreted?
Chief Justice John Marshall was certainly active in the founding era. He famously used both “excavation” and “invention,” as well as several other, often weightier interpretive strategies, in deciding the leading cases of that era. Marshall regularly interpreted the Constitution only after considering, among other factors, the inherent ambiguity of language, the dictionary meaning of the text, contemporary economic realities, and the nature of a constitution itself. Ultimately, he concluded that the Constitution was a living document.
Having taught constitutional law for 40 years, I find it difficult to agree with either the interpretive understanding of Gienapp himself or the seeming ready acceptance of such an understanding by the reviewer. Be that as it may, it is difficult to imagine Chief Justice Marshall, with his multi-factor interpretive approach, ever joining an “originalist” opinion by Justice Antonin Scalia.
John Marshall Law School
The White Supremacists Around Us
Re Laila Lalami’s “The Man With the SS Tattoo” [April 1]: And then there are the purportedly “fine people” who support President Trump and his policies—40-plus percent at last count. We don’t classify them as “extremist.” The president himself may not be considered mainstream, but his pronouncements on race, religion, and ethnic background are approved by an alarming number of people who don’t bear the trappings of white supremacy. Perhaps this is the reason there’s no will to combat domestic terrorism, even as some push for a southern border wall. A chance encounter with a white supremacist, though chilling, is every bit as nauseating as the “fine people” in our midst everyday.
Debating the Need for Debate
Re “Calling Out the Israel Lobby” by Phyllis Bennis [April 1]: For me, there’s a bright-line test: Elected officials should support the existence of Israel and work for a just peace on that basis (which, by the way, has always been Bernie Sanders’s position). That, however, is not my main criticism of Congresswoman Ilhan Omar. Through her tactless, poorly worded comments, Omar has opened up a breach among progressive Democrats that didn’t need to be opened. That is a gift to Trump that he has already taken advantage of.
Perhaps when Israel stops throwing up its hands and saying, “We can’t stop it” (referring to its land grabs and continued settlement of Palestinian-owned land), we’ll begin to see some semblance of responsibility and ethics within Israel’s borders. After all, $3.8 billion is a lot of money for us to be giving every year to a country that shows so little regard for basic human rights. By all means, let’s open up this breach.