Forty-five years ago the “Summer of Love” began with a San Francisco rock concert that drew thousands of students and dropouts determined to change society with their childlike visions of peace and freedom.
They succeeded. And the Constitution hasn’t been the same since. Its 225th birthday this week has been a time to honor our beginnings, but also a moment to remember these past decades of phenomenal change, and to ponder what lies ahead.
Since our social revolution in 1967, in case after case, the individualism of so-called “hippies” has been tested, debated, vilified and celebrated. In the end, that movement forged new, broader meanings for liberty second only to what the Civil War wrought.
Even though the freedom to be different was essentially written into the Constitution’s Bill of Rights, it took rock ‘n’ roll, flower children and a divisive war to make “doing your own thing” a legal movement that is as inexorable and controversial today as when it started.
The Summer of Love was the season that activated the largest generation of teen-agers in the nation’s history, the baby-boomers. Children of middle-class parents with enough money to send them to college, they had the time and the inclination to rebel.
What was born that summer did not end with the ’60s. Proving again that freedom, once loosened, is not easily contained, the love children prompted Americans to rethink their own assumptions about what was decent and acceptable. Once-ridiculed trappings of the counterculture — health food, rock music and longer hair — became part of mainstream America.
As the public has grown more tolerant of unconventional lifestyles, the courts have stretched the Constitution beyond tightly defined freedoms of speech, political association and religion. Judges have been persuaded to uphold unorthodox behavior they once would have forbidden. Today, advocates for same-sex marriage are gradually winning in the courts and in state legislatures, thanks in part to what began in the Summer of Love.
Our Secret Amendment
The spirit of constitutional evolution is embedded in a provision that, strangely, has never really been cited as controlling authority in a Supreme Court case: the Ninth Amendment. It says,
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Written by James Madison, the Ninth Amendment was passed by Congress with little debate in 1789 and was ratified easily by the states as part of the Bill of Rights. Since then, the courts virtually ignored it, perhaps fearing its open-ended invitation to change.
Still, in a 1965 opinion, the Supreme Court frankly stated,
“The language and history of the Ninth Amendment reveal that the framers of the Constitution believed that there are additional fundamental rights, which exist alongside those fundamental rights specifically mentioned” in the Constitution.
So-called “strict constructionists” argue that the Constitution should only be applied as the founders specifically intended. But in the Ninth Amendment its authors were telling us otherwise, that they knew they had not thought of everything, and they encouraged us to expand our rights as we see fit.
Indeed, our nation’s founders were much more modest about their handiwork than those who now insist their original intent must be revered and applied without any adjustment.
“Nothing human can be perfect,” said Pennsylvania delegate Gouverneur Morris, who wrote the final draft of the Constitution. “Surrounded by difficulties, we did the best we could, leaving it with those who come after us to take counsel from experience, and exercise prudently the power of amendment.”
As American history unfolded, constitutional change became constant. The nation has approved 16 amendments to the Constitution since the Bill of Rights was adopted.
Judicial interpretation has been used much more often. The U.S. Supreme Court has interpreted the Constitution in thousands of cases, often reversing its previous rulings or giving bold new meaning to neglected phrases in the document.
Even former Chief Justice William Rehnquist, considered a stalwart of strict construction, once praised the Constitution’s evolving nature.
“Change is the law of life, in government as well as in other matters,” Rehnquist said. “There is no reason to treat our present Constitution with an ark-of-the-covenant mentality. Two hundred years from now, our present-day Constitution may well seem to our descendants to have many shortcomings which were not apparent to us.”
The Chief of All Justices
Even the Supreme Court’s power to interpret the Constitution stems from an exceedingly liberal reading of the document. Some would say it was simply made up, having no basis in the Constitution’s words.
Today, we take it for granted that the Supreme Court can strike down laws that it deems unconstitutional. But that was not considered legally possible until more than a decade after the Constitution’s adoption, when a Virginia frontiersman invented a new role for the judiciary.
“It is, emphatically, the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in Marbury vs. Madison, an 1803 Supreme Court opinion that forever changed American constitutional law.
Marshall, a western Virginia woodsman and Revolutionary War hero, had persuaded his fellow justices to declare a federal law unconstitutional, even though the Constitution specifically gave that power to no one.
In assuming a right to decide what the Constitution means, Marshall, then 48, created a legal principle that reached well beyond his 34 years at the helm of the Supreme Court. His work underlies momentous rulings issued generations later, such as the orders in the 1950s to desegregate public schools.
“Marshall had the wit and courage to make the most of his opportunity,” said former Chief Justice Warren Burger in a London speech in 1972. “He was the Great Chief Justice on our side of the Atlantic. How could there have been a greater one?”
It was during his Revolutionary War years that Marshall saw a need for strong central government, a lesson he remembered on the court as he engineered ways to strengthen federal powers.
At age 21, Marshall served with Gen. George Washington during the miserable winter at Valley Forge, when the loosely knit Colonies nearly bungled their bid for independence. Even though clothing, food and ammunition were plentiful, the lack of centralized authority kept the supplies from reaching the soldiers.
Seeing this handicap led Marshall later to write an opinion expanding the power of the federal government to control transportation networks.
Marshall’s career as a leading federalist began soon after the war. He debated Patrick Henry, the most eloquent anti-federalist, in favor of ratifying the proposed Constitution.
Washington offered him several jobs in the new government, including those of attorney general and minister to France. Marshall declined in favor of making money to compensate for his family’s losses in the war.
He spent only two months in law school, but his natural skills as a tactician and an incisive speaker made him one of the country’s highest-paid lawyers, earning more than $5,000 a year. Not intrigued by the philosophical debates of his more educated contemporaries, he preferred the thrill of arguing real cases.
Even so, a few potential clients were put off by Marshall’s eccentricity. Shunning the powdered wig and satin breeches favored by most lawyers, Marshall wore plain linen clothes and bundled his hair in a ponytail. A bit absent-minded, he sometimes misplaced important court documents, and his eyes wandered during conversations that bored him.
Marshall’s financial success eventually allowed him the luxury of public office. After stints in the Virginia Legislature and the U.S. Congress, he became minister to France under President John Adams.
As Adams prepared to leave office, the post of chief justice became vacant for the fourth time in 12 years. The Supreme Court was not considered a very important branch of government in its early days, and few were interested in serving on it.
Adams knew that this time he needed a strong federalist in the job — someone devoted to a strong central government. Thomas Jefferson was taking over the presidency, and as a staunch anti-federalist he could be expected to weaken much of the federal power gained by Washington and Adams (although he turned out to be far more friendly to power once he had some).
Adams turned to Marshall. In his third year of office the new chief justice entered a showdown with Jefferson in Marbury vs. Madison. Although Marshall’s invention of the court’s right to interpret the Constitution escaped immediate notice by the press and public, Jefferson was enraged.
Jefferson warned that letting the court decide what the Constitution means would make the document “a mere thing of wax in the hands of the justices.” He believed that each branch of government “has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”
With the Marbury decision, Marshall began the practice of issuing written opinions. During his next three decades on the court, he often pleased the federalists by using interpretation to expand many powers granted to the federal government under the Constitution.
The jurist’s immeasurable contribution to federalism led Adams to call his appointment of Marshall “the pride of my life.”
It is arguable whether Marshall’s disdain for the social pretensions of his contemporaries means he would have been a hippie in 1967, but there is no doubt that his legacy – creating the Supreme Court’s power to interpret our Constitution – helped make the Summer of Love the law of the land.
— Benjamin Franklin