THE MAGNA CONTRACT

Gavel Gamut

By Jim Redwine

(Week of 01June 2015)

THE MAGNA CONTRACT

When the National Judicial College sent me to Ukraine in 2000 to teach Ukrainian judges about our legal system, I learned more than I taught. Ukraine’s legal system was a moving target. It was less a system than a happenstance. What happened in court had more to do with the circumstances of the litigants than the facts and law. It struck me as the antithesis of Sir Henry Maine’s description of evolving cultures.

Maine (1822 – 1888) was a British legal theorist who postulated that cultures advance from “status to contract”, i.e., from where one’s birth, religion, etc. prohibit free association, to a society where one may associate with any consenting adult. Freely negotiated agreements are the hallmark of an advanced society.

America’s great contract between our government and the citizens is our Constitution. Our country may have been born on the Fourth of July, 1776, but it achieved its long lease on life September 17, 1787 when the Constitution was ratified. It is a justly revered but imperfect document that has required numerous amendments, twenty-seven, and will likely require more.

The institution that has the ultimate responsibility for interpreting the United States Constitution is the U.S. Supreme Court. This power was not set forth in the Constitution but was usurped by Chief Justice John Marshall in the case of Marbury vs. Madison (1803). Ironically, often the nine old folks on the court have got it as wrong as other cabals have.

For example, in Pace vs. Alabama (1883), 106 U.S. Sp. Ct. 583, the court upheld an Alabama statute that made it a felony for whites and “Coloreds” to cohabit. (Reversed in McLaughlin vs. Florida over eighty years later, 1964. This did little good for the Black man and white woman sentenced to two years in an Alabama prison.)

Then there is the aptly named case of Loving vs. Virginia. Twenty-three year old white man, Richard Loving, and seventeen year old Black, Mildred Jeter, left their home state of Virginia that prohibited interracial marriage and got married in Washington, D.C.  Then they returned to Virginia where they were arrested in 1958 and found guilty in 1959. If there ever was a doubt about the wisdom of keeping religion out of government the decision of the Caroline County Virginia Circuit Judge, Leon M. Bazile, should dispel it. The Honorable Judge Bazile ruled:

“Almighty God created the races white, black, yellow, malay and red and he placed them on separate continents. He did not intend for the races to mix.”

Then he sentenced the couple to a year in jail and suspended it on the condition they leave Virginia for twenty-five years.

When they returned to visit relatives five years later they were arrested. The Lovings appealed but the Virginia courts upheld the sentence. Finally the U.S. Supreme Court struck down all anti-miscegenation laws in Loving vs. Virginia (1967) over one hundred years after the Civil War.

As the old legal adage goes, “The wheels of justice grind slowly, but exceedingly fine.” Perhaps our society will continue to slowly and finely remove the propensity for our government to tell us with whom we may freely contract.