A Brief Analysis of Terry Eastland’s “Benchmarks: Great Constitutional Controversies in the Supreme Court”

Article III of the Constitution established the judicial branch, and its therein roles and responsibilities, of the federal government. The inclusion of a supreme judiciary is fundamentally critical for a nation governed ruled by a constitution; Alexander Hamilton argued in Federalist 78 that in this government an institution must exist to decide whether the “intentions of the people” are being perpetrated in favor of the “intentions of [the people’s] agents.” The Constitution is the supreme law of the land, and any law — local, state, and federal — or departmental regulation that comes in violation of the Constitution is rightly void. The Constitution guarantees to every citizen that this government will not rule unjustly, and will certainly not rule without the consent of the people. The Supreme Court acts as a direct “representative” of the people, nullifying any tyrannical overreach from either the executive or legislative branches. The intellectual method — judicial review — by which the Supreme Court carries out this indispensable duty is not explicitly found in the Constitution, but is nonetheless just as organic to a nation of rights and liberties as breathing is to the survival of human beings. Judicial review requires the Supreme Court justices to interpret the Constitution in such a way that upholds the primal purposes of the institution — but the Constitution does not give guidance to how justices are to make those interpretations. Those interpretations are left up to be made by the conviction of individual justices on the Supreme Court. Terry Eastland delves into how justices, particularly Supreme Court justices, go about the task of interpreting the Constitution in his book Benchmarks. Within his book, Eastland provides among the most prominent court cases in American constitutional law to explore the different examples of constitutional interpretation that are practiced in the modern-day court setting.

The approaches by which justices on the Supreme Court interpret the Constitution have a direct impact upon how American citizens enjoy their natural rights in their daily lives; those interpretive approaches to individual cases have the capability to alter Americans’ understanding of their rights for generations after a court decision is made. Before entering into analysis of the court cases Eastland provides in Benchmarks, he gives the reader the opportunity to briefly discuss the varying scholarly viewpoints over the evolution and growing complexity of American constitutional thought in the book’s Preface section.

Historical record shows that differing viewpoints related to the the task of Constitutional interpretation go back to the 1798 Supreme Court case Calder v. Bull, where the exchanges between Justices Samuel Chase and James Iredell over the Court’s role in nullifying laws reflect today’s discordance regarding the Court’s role in defining and/or expanding the rights of citizens. Chase candidly believed that any law antagonistic to the principles of natural justice, “regardless of whether those principles are stated in or can be fairly inferred from the Constitution”, was to be rightfully struck down by the Supreme Court (xxi).

Iredell maintained that Chase’s interpretation was in stark friction to the legal tradition and to the reason why the Founders created a constitution in the first place. His belief was that courts cannot strike down a law just because individual justices subjectively judged the law to be in conflict with the principles of natural justice; unless a law was conclusively evident to be in violation of the rights explicitly found in the Constitution, it could not be nullified.

To the chagrin of Iredell, very few justices today constrain their judicial review of cases to just the explicit rights found in the Constitution, and American judicial history has shown to weigh with Chase’s interpretation overwhelmingly more. Through the centuries, Chase’s early interpretation of the Constitution has become a reality for much of the way American court systems interpret the Constitution today. The power of interpretation is a powerhouse in the modern-day judicial system, and has led to the creation of new rights through the incorporation of clauses from multiple amendments in the Constitution; constitutional scholars who support incorporation state that these rights do indeed exist, but require logical inference and sound constitutional knowledge for more of these rights to be uncovered.

Towards the end of the Preface, Eastland poses this rhetorical question to the reader: “Where are we now, on this sometimes slippery slope of constitutional interpretation?” (xvi). To those that interpret the Constitution from a textualist approach, the answer is damning. Gerard V. Bradley of the Notre Dame Law School examined the argument that the Supreme Court today has abandoned the Founders’ Constitution for one that is based much more on incorporation and interpretation. By studying Supreme Court cases from World War II through Planned Parenthood v. Casey and Lee v. Weisman, he concluded that the Court’s decisions are not so much by the Constitution but by, as Bradley determines, “the rational approach of a theory of the human persona and a normative view of the judicial function in a pluralistic democracy.” (xvii). In other words, since World War II, the Supreme Court has based most of its decisions on the interpretative essence of natural rights theory combined with natural justice jurisdiction — the concept that judiciaries have jurisdiction in cases to determine whether or not a law is in conflict with the principles of the social compact; this concept is not synonymous with the responsibilities of the judicial branch as outlined in Article III because this concept gives the judicial branch the power to determine the interpretative constitutionality of laws, and not solely based upon the explicit rights granted in the Constitution.

Much of the American public today subconsciously views the Supreme Court as one single supreme being instead of as literally an adjudicating group of nine constitutionally-adept justices. Thus when a decision is reached on cases that grab hold of the public eye, the public will look at the numbers of a vote but not the course by which the justices reached that decision, which is equally, if not more, important than the decision itself. Eastland ends the Preface with this same idea in mind. He believes that it should the American people should take greater interest, “if not concern”, to the ways in which the Supreme Court interprets the Constitution (xvii).

Eastland commences the bulk of Benchmarks by examining the early decades of the Supreme Court, the early justices’ interpretations of the Constitution, the decidedly impactful cases of those initial decades — in regards to the courses by which the Constitution was interpreted in each of those cases — , and the relationship between those early justices’ Constitutional interpretations and today’s leading interpretations.

When deliberating a case, especially in those budding years, the Supreme Court was intended to strictly appeal to the Constitution for interpretation; the Founders wanted a constitution that would endure the test of time, and appealing to anything other than the Constitution when deciding a case threatens that test; the idea behind the Founders’ establishment of a judicial branch was that it would uphold the legitimacy of the government by deciding individual cases based upon the will of the people — and the will of the people rests upon the written text of the Constitution. Precedence in a court system based upon the common law tradition is paramount to the legitimacy of that court system. Every case the Supreme Court has ever decided upon has established precedent in some form, which influences like-cases in the future; like-cases must be treated alike, so the saying goes. The highlight of Chapter 1, and one that is particularly interesting in its explanation of the roots of the Supreme Court’s current interpretation of the Constitution, in Benchmarks is Justice Washington’s faulty yet deeply impactful opinion in the 1823 case Corfield v. Coryell, where his misinterpretation of Article IV, Section 2, #1 — “The citizens of each state shall enjoy the privileges and immunities of citizens in the several states.” — inadvertently resulted in the structuralist interpretation of the Constitution within the Supreme Court to prevail. The Article IV clause at hand was intended to prevent states from discriminating against citizens of other states, thus instead of presenting the case question, “What are privileges and immunities?” he should have asked, “What are these privileges and immunities?”. Down the historic line, the former question resulted in what is called a “practical nullity” of Congress’ power to enforce the Privileges and Immunities clause of the Fourteenth Amendment, and thus ceded that power to the Supreme Court. In near totality, the Supreme Court’s ability to exercise natural justice jurisdiction today are due to Washington’s mistake in properly reading the law.

The gateway for the Supreme Court today to be able to determine the fundamental rights of citizens, through the exercise of natural justice reasoning, is almost always connected to the following: the Due Process Clause of the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment (xiii). Eastland uses Chapter 2 of Benchmarks to explain how the interpretation of the Fourteenth Amendment evolved during the last decade of the 19th Century.

A case of historical significance in American history, Plessy v. Ferguson was the 1896 Supreme Court case that determined segregation between white and black citizens to be in agreement with the Constitution, and within the parameters of serving a compelling governmental interest; “to promote the comfort of passengers on railway trains” (30). In April of 1896, more than four years after Homer Plessy’s arrest, the justices on the Supreme Court decided the case in a 7–1 vote against Plessy, with Justice Henry Billings Brown reading the opinion the Court, and Justice John Marshall Harlan dissenting. Eastland chooses to focus in on Brown’s opinion for examination, stating, “Brown’s opinion reveals more about the constitutional climate of the late nineteenth century.” (32).

America today is more equal and free than it ever has been since the country’s founding. The post-Civil Rights years have made all people, despite racial backgrounds, achieve the same level of equality with all other citizens. The case made against Plessy in Plessy v. Ferguson is one in which Brown upholds segregation by tying his opinion in with an appeal to nature — The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could have not been intended…” — as well as making his opinion in line with the mandates of the Fourteenth Amendment: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences… If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically.” (34). It is very troublesome to the mind to know that the same judicial body, today which utilizes same broad interpretation of the constitution and appeal to nature, was the same body which restricted the rights of colored citizens in Plessy v. Ferguson.

The long process in which the jurisprudence the Founding Fathers had intended for the judicial branch to act according to has evolved over the two centuries is interesting to say the least. The branch that was originally deemed the “least dangerous branch” has over the years consolidated power by way of the Fourteenth and Fifth Amendments, not to mention taken constitutional powers from Congress, through the morphing interpretations of the Constitution. The complete evolution of these changes in constitutional interpretation within the judicial branch is the main subject of Terry Eastland’s Benchmarks. In it, Eastland examines some of the most important and impactful cases in American judicial history and analyzes, through the case opinions given by Supreme Court justices, how the interpretation of the Constitution has changed over time to become how it exists today. For those that are concerned with the direction the Supreme Court is heading in its constitutional interpretation, Terry Eastland’s Benchmarks is a terrific place to begin understanding this modern-day issue.

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