Justice Potter Stewart: US Constitution is adequate--but may be 'amplified' too much
Potter Stewart is still fiercely loyal to what he calls the ''boss''--the Constitution of the United States of America. But he's worried about some who may not be.
The former Supreme Court jurist's concern is over current constitutional thrusts by the so-called ''New Right'' and others groups driven by ideology. He says that the demands of ''single interest'' groups who want to limit the power of the courts or convene constitutional conventions to resolve budget, busing, and other disputes could ''distort representative democracy.''
''The Constitution is viable today because of the genius of the Supreme Court ,'' insists the longtime associate justice, who spent 23 years interpreting the law of the land before his retirement last year.
Justice Stewart was considered a ''moderate,'' a ''neutral,'' a ''swing voter.'' He was committed to narrow, non-anticipatory opinions--voting on the merits of individual cases. He shunned long-term social and economic philosophy.
But that was neccessary, he says, to allow future justices to keep the Constitution abreast of the times. Overly broad decisions might have tied their hands, he says.
''The Constitution was kept up to date from Marshall to Hughes to Warren. They (the justices) realized they were interpreting a Constitution--not a traffic code,'' Mr. Stewart says.
In a rare interview since his retirement, the former justice assessed current challenges to the Constitution.
As we chatted in his spacious law office--which he maintained in the Supreme Court for purposes of writing and preparing talks - Mr. Stewart roamed the room like a prosecutor, clutching a copy of the Constitution, and frequently referring to it when responding to questions.
He said that the Constitution embodied some radical notions at the time it was written--notably, ''government by consent of the people rather than sovereign rule or conquest.'' He allowed that the Founding Fathers certainly couldn't have foreseen the problems of the late 20th century in the 18th century. But he insisted that the concepts are timeless.
''Due process of law and cruel and unusual punishment just take on a new context,'' he explains, with the passing of time.
If Justice Stewart were one of the Founding Fathers, yet blessed with the insights of today's history, what might he add--or delete--from the Constitution?
''We might put in (the Bill of Rights) economic and social guarantees,'' he says.
Some proffered examples: the ''right to a public education through an age or grade level'' or protections ''against starvation or abject privation.''
Are there instances where the courts have gone too far in broadly interpreting constitutional rights? Do police have too difficult a time in making arrests, and do criminals have too many rights?
''The Bill of Rights was not designed to make law enforcement easier. Actually it makes it more difficult,'' says Justice Stewart.
However, he concedes that the original guarantees in the Bill of Rights now have been ''expanded'' and ''amplified''--perhaps too much.
He says he is also concerned about undue delays in the administration of justice. ''It (delay) has increased in modern times--more than in other Western countries. He who said 'justice delayed is justice denied' said a mouthful,'' he observes.
''But,'' he hastily adds, part of the problem of delay is attributable to the fact that ''we're asking too much of the courts'' in settling disputes.
''How about a little more representative democracy?'' he asks rhetorically.
How would he bring about more representative democracy?
The Founding Fathers' notion was to make Congress the strongest of the three branches of government, Justice Stewart explains. Consequently, there should probably be some restraints on the executive branch in international and military affairs, he says. Moreover, he adds, the federal judiciary should have some say in economic policy.
In Justice Stewart's view, the Constitution does work today--and it works well despite some abuses. But he warns against overdependence.
''It took 55 representatives three months to hammer out the original Constitution,'' he notes. ''Many (planks) reflected contemporary grievances.
''Today a like kind of wisdom might caution against constitutionalizing every grievance that might (or might not) appear tomorrow.''