The Court and the Constitution
As the bicentennial of the Constitution, 1987 was a year of intense interest in that historic document. Public ceremonies commemorated the signing two hundred years ago by the “Framers.” Chief Justice Warren Burger published a widely read series of newspaper columns outlining the development of the Constitution and its underlying principles. A bevy of books appeared, approaching the subject from all angles, some serving as new, indispensable scholarly sources. There was the ambitious, critically acclaimed Documentary History of the Supreme Court of the United States, 1789-1800: Volume 1 (1985), edited by Maeva Marcus and James R. Perry. David P. Currie’s The Constitution in the Supreme Court: The First Hundred Years, 1789-1888 (1986) treated significant early cases not widely remembered in the twentieth century except by legal scholars.
Other books on the Constitution ranged from philosophical investigations to polemics; most of them, however, like Burger’s columns and Currie’s book, acknowledged a profound historical connection between the Constitution and the Supreme Court, and some tried to characterize the work of the Court in that role. Michael Kammen, for example, in A Machine That Would Go of Itself: The Constitution in American Culture (1986), portrayed the Court as so aloof from public opinion (to maintain an impartial attitude) that the justices seldom answer or even read letters from citizens about a pending decision. On the other side, Eva R. Rubin, in The Supreme Court and the American Family: Ideology and Issues (1986), asserted that the Court has been committed to traditional concepts of the family and thus has generated conflict with those who consider those concepts obsolete. Whatever they may have thought of the Court, most of these authors declared their faith in the Constitution as a plan of government and, with its amendments, as a bulwark of civil liberties. An exception was Christopher Wolfe, who asked in The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (1986) whether the Constitution is really an adequate basis for modern government.
Archibald Cox would answer with a resounding “Yes!” As he makes clear in The Court and the Constitution, however, Cox also believes that the Supreme Court is the most effective instrument for ensuring that the Constitution continues to provide this adequate basis for modern government.
Cox’s book has something in common with the scholarly publications occasioned by the bicentennial as well as with the polemical. Yet as a writer on this subject, he also has one unique qualification: a certain kind of direct experience. As Solicitor General from 1961 to 1965, and as the first Watergate Special Prosecutor, he has witnessed constitutional principles being tested, approved—and evolved. Indeed, in the latter capacity, he was party to a showdown over the quasi-constitutional doctrine called “executive privilege”—a crisis that he deftly sketches in his prologue. Sworn to pursue the Watergate break-in investigation wherever it led, even to the presidency, Cox subpoenaed the taped conversations of President Richard M. Nixon after testimony by Alexander Butterfield, a former Nixon aide, revealed the existence of these tapes. Cox was sure that they would establish whether or not Nixon and others in his administration had engaged in a cover-up to hide the responsibility for the Watergate burglary.
Until 1973, no American president had ever been forced to give evidence in response to a subpoena. Nixon, who did not intend to break with that tradition, vowed to keep the tapes confidential and claimed two legal grounds for his refusal to comply with the subpoena: immunity from legal process (based on separation of powers) and executive privilege, the right to decide what information and documents in the executive branch should be kept confidential. Though it is not generally acknowledged, precedents for both of Nixon’s arguments reached as far back as the administration of James Madison, and, more important, no court had ever forced a test of executive privilege. Nevertheless, the Watergate judge, John J. Sirica, would accept neither of Nixon’s claims. According to Cox, the ruling by Sirica, subsequently upheld on appeal, “settled the principle that even the President of the United States is subject to the Constitution and other legal obligations...
(The entire section is 1817 words.)