The Achilles Heel of the Constitution: Lessons from Archival History
Story posted February 10, 2003
At Friday’s Common Hour, Dennis Hutchinson ’69 shed a little light on the life of an archival historian.
“I read other people’s mail for a living,” he said.
In addition to being a legal scholar and historian, Hutchinson is a Bowdoin graduate, member of the Board of Trustees, and former Rhodes Scholar. He now chairs the Law, Letters and Society program at University of Chicago College.
Telling stories, Hutchinson said, is what an archival historian does after he or she has read the other people’s letters, diaries and papers, and he treated the Common Hour audience to two stories involving his archival finds.
Hutchinson obviously delights in the treasure hunting aspect of historical research and in the relationship between the courts and the U.S. Constitution, and the stories he told involved discoveries of unexpected documents and the light they shed on the psyche of the U.S. Supreme Court.
When Hutchinson discovered The Forgotten Memoir of John Knox, it consisted of 978 double-spaced pages sitting on a University of Chicago Law Library shelf. Upon reading it he discovered an eye-witness account to a pivotal point in judicial history.
A memoir by a supreme court clerk, as the document turned out to be, is an unusual find, as clerks bound by ethics and confidentiality agreements, generally do not write them. Hutchinson had discovered not only such a memoir, but one that provided an inside look at Franklin Delano Roosevelt’s court packing plan and surrounding controversy.
John Knox was a clerk in 1937 during the months that Roosevelt endorsed legislation to increase the number of Supreme Court justices to 15. He would appoint the new justices himself, which would give him the power he needed to push through his political agenda.
The find was an exciting one for Hutchinson, since the closest thing he has had to a mission in his career has been “to demystify the Supreme Court of the United States.”
“The dirty little secret about lawyers and justices is they talk in a syllogistic form, they try to be rational
.but they’re just as subjective and just as human as you and me,” he said.
Knox, according to Hutchinson, “was an inveterate person at bugging celebrities.” This skill enabled him, in essence, to pester his way into the service of a Supreme Court Justice. However, the justice whom he had pestered, Willis Van Devanter, foisted Knox off onto another justice, James Clark McReynolds.
“That’s the difference between working for a normal judge and Godzilla in a bad mood,” Hutchinson said. Van Devanter was “the nastiest person ever to sit on the supreme court.” He was “bigoted” and “breathtakingly lazy.”
But Van Devanter was also one of the so-called Four Horsemen of the Apocalypse, the conservative justices who opposed F.D.R. The court-packing plan was nothing short of a Constitutional crises, Hutchinson said, and Knox’s memoir is valuable for the inside look at the court it grants, particularly during such a crisis.
For Hutchinson, another pleasure in publishing the book was shedding light on the lives of two of countless African Americans who devoted their lives working for government officials, but did so in relative obscurity. One of the key figures in Knox’s memoir is Harry Parker, a messenger for McReynolds and in telling the story of the court packing crisis, Knox tells some of Parker’s story as well.
The other story Hutchinson told gave the title for his talk “The Achilles Heel of the Constitution.” A story that resonated with the audience because of the current political climate, this one dealt with Justice Robert H. Jackson and his feelings about war powers granted to the government.
Jackson was one of the most eloquent justices to sit on the Supreme Court, and his was a “story about a gifted writer paralyzed intellectually by a choice to be made in time of war,” Hutchinson said.
Hutchinson discovered in Jackson’s papers drafts of an opinion he wrote, but never published, concerning the case of a young Japanese American in 1943.
Gordon Hirabayashi was convicted of disobeying a curfew linked to the relocation of ethnic Japanese to internment camps following the attack on Pearl Harbor. Hirabayashi fought his conviction as a violation of his civil rights, and he fought it all the way to the Supreme Court. The Supreme Court Hirabayashi found himself in front of was a very different court from the one that John Knox observed. Many of the justices on this court were beholden to Roosevelt and they also served as unofficial advisors on the war effort. They were hesitant to go against Roosevelt or his military commanders.
“The court didn’t want to second guess the military in a time of war,” Hutchinson said. There was almost no chance that this court would uphold Hirabayashi’s claim of discrimination. And it did not.
The relocation and internment of Japanese was done under the auspices of war powers. While the Constitution grants these powers to the government in times of war, it does not define their scope of those powers.
Jackson was troubled that Hirabayashi’s guilt was inexorably linked to his ancestry, and he called the war powers “the Achilles heel of the Constitution” in that they could easily expand to a point where they infringed on the liberty granted by that same document.
Jackson wrote seven drafts of a dissenting opinion, but in the end, he suppressed it. Other justices convinced Jackson that the opinion was narrow enough that it would not be used to circumvent other challenges to relocation and internment. To Jackson’s dismay, however, a year later the decision was used to uphold the conviction of Fred Korematsu, a Japanese America who was convicted of failing to report to a relocation center. At this point, Jackson spoke out against upholding the Korematsu conviction.
Jackson’s most famous opinion also dealt with government power during wartime. He voted, with the majority, to deny Harry Truman the power to take over steel mills and keep them running despite labor struggles during the Korean Conflict. In this, as in his earlier two opinions concerning war powers, Jackson spoke eloquently of the ever-present danger that courts might make decisions based on specific situations rather than in the interest of maintaining the balance of power and upholding liberty.
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