by Deborah A. Roy, Trial Attorney, Antitrust Division, United States Department of Justice and author of "Justice William J. Brennan, Jr., James Wilson, and the Pursuit of Equality and Liberty," 61 Clev. St. L. Rev. 665 (2013)
* The views expressed are not purported to reflect those of the United States Department of Justice.
Justice William J. Brennan, Jr., who served on the United States Supreme Court for 34 years from 1956 to 1990, was one of the most influential justices during his term on the Court. Today, however, it is unlikely that a president would announce his intent to appoint a justice in the mold of Brennan or that a nominee to the Court would invoke Brennan’s jurisprudence. Justice Brennan has been criticized for legislating from the bench and enacting his own liberal social views, rather than strictly interpreting the United States Constitution. To the contrary, however, Justice Brennan’s opinions were often directly opposed to his personal beliefs. For example, Justice Brennan acknowledged that, as a lifelong Roman Catholic, the rulings outlawing prayer in schools were difficult for him. And while he upheld the right of a demonstrator to burn the United States flag, it is unlikely that Brennan, a World War II veteran who cherished the country established by the Constitution, would himself burn its flag.
In fact, Justice Brennan interpreted the Constitution taking into account his understanding of the document’s founding principles. And his constitutional vision is consistent with that of James Wilson, a Framer from Pennsylvania, who is one of only six men to sign both the Declaration of Independence and the Constitution. Wilson is considered by many scholars to be second only to James Madison in his influence on the drafting of the Constitution. Justice Brennan and James Wilson shared a constitutional vision based on respect for the individual. Brennan frequently referenced human dignity as the foundational principle of his jurisprudence, while Wilson emphasized that the fundamental unit of democratic government is the individual person. From the principle of individual dignity, both men derived rights to equality and liberty. In a speech urging Pennsylvania to ratify the Constitution, Wilson stated that among the advantages of a constitutional democracy are the rights to liberty and equal laws for its citizens. Two centuries later, Brennan’s opinions furthered the realization of racial and gender equality, and upheld the liberty of individuals to make personal decisions without interference from the State.
On specific constitutional issues, the similarity of the views of Justice Brennan and James Wilson is remarkable. Both men supported proportional representation so that each citizen’s vote would have equal weight in electing a government. During the Constitutional Convention, Wilson defended proportional representation stating that because all authority is derived from the people, equal numbers of people ought to have an equal number of representatives. One of Justice Brennan’s most transformational opinions was Baker v. Carr, which became the foundation for all subsequent cases guaranteeing every citizen equal participation in the democratic process. Additionally, both men advocated for strong criminal procedures to protect the liberty of even those individuals accused of criminal behavior. Justice Brennan’s commitment to human dignity was best shown by his adamant opposition to the death penalty because he concluded that when the State destroys the individual it extinguishes all of her dignity. In his era, James Wilson also questioned whether respect for the individual called into question the legitimacy of capital punishment.
Today, the Supreme Court justices differ as to whether the broad phrases of the Constitution should be interpreted by discerning the Framers’ original intent in 1787, or by applying its foundational principles in light of current realities. Justice Brennan had little patience with an originalist approach because the historical record is at best ambiguous and statements can readily be found to support either side of an issue. He observed that the Framers wrote in broad phrases precisely because they were formulating a Constitution for the unknowable future. At the Constitutional Convention, James Wilson explicitly stated this principle, advising the Framers that they were providing a Constitution for future generations and not merely for the peculiar circumstances of the moment.
Issues of individual rights including equality of voting rights, equal access to public education and marriage equality, as well as liberty of thought and action, continue to challenge the courts. For Justice Brennan and James Wilson, decisions on these issues should reflect the Constitution’s foundational principle of individual dignity and further the progressive achievement of equality and liberty for all individuals. Their advancement of individual dignity through the law is a remarkable accomplishment that should remain relevant to contemporary American jurisprudence.