Four Questions with Legal Historian Paul FinkelmanDr. Paul Finkelman will discuss slavery's influence on the Constitution and resulting Supreme Court decisions on Tuesday, March 5.
Posted on March 1st, 2019 by

Dr. Paul Finkelman

Legal historian and Supreme Court scholar Dr. Paul Finkelman will be on the campus of Gustavus Adolphus College on Tuesday, March 5 to give a free public lecture titled “Supreme Injustice: Slavery in the Nation’s Highest Court.” The lecture, which shares a title with his most recent book, explores what he argues was the pro-slavery nature of the Constitution and how the foundation set forth by the document impacted the slavery jurisprudence of three major Supreme Court justices. Hosted by the Hanson-Peterson Chair of Liberal Studies, the Department of History, and the Office of the Provost, the event is scheduled for 7 p.m. in the Heritage Banquet Room of the Jackson Campus Center.

Finkelman currently serves as the president of Gratz College in Melrose Park, Penn. He is considered one of the world’s foremost experts on the history of the Supreme Court, has been called to testify as an expert witness in front of the Court, and has been cited in five Supreme Court decisions including the recent unanimous Timbs v. Indiana case that limited police power to seize private property. The author or editor of 50 books and numerous articles, Finkelman is one of the most-cited legal historians of the 21st century.

In anticipation of his lecture, Finkelman answered four questions about the Constitution and the Supreme Court.

Gustavus: Although slavery ended in the United States over 150 years ago, issues of race and power have continued to shape the history of the country. How has the Constitution itself advanced or limited the fight for equality since the Emancipation Proclamation?

Dr. Paul Finkelman: The Constitution has clearly advanced civil rights through the 13th, 14th and 15th Amendments adopted after the Civil War. The amendments ended slavery, made former slaves and their descendants citizens of the United States, and prohibited discrimination in voting. These amendments eventually led to Supreme Court decisions like Brown v. Board of Education in 1954, which ended segregated schools. They also led to the 1964 Civil Rights Act and the 1965 Voting Rights Act, which had an enormous impact on civil rights. However, other parts of the Constitution are still affected by slavery. For example, the electoral college was created to give the slave states extra power in the election of the president and to prevent a popular majority from electing a president. That provision still haunts the United States.

Gustavus:  As societal norms change, how does the Supreme Court evolve to reflect the arc of progress while still serving as an impartial and timeless institution?

PF: The Court always reflects the people who serve on it, and because they are appointed by presidents, they reflect politics. However, the life tenure means that members of the Court often serve decades beyond when they were appointed and they may not reflect modern Americans. Also, in recent years some presidents have appointed excessively political justices who are more interested in their own political ideology than the meaning of the Constitution and do not reflect the American people. One example is this: the majority of American believe in reasonable firearms regulation, background checks, and limitations on certain kinds of weapons and even ammunition clips. The 2nd Amendment protects the right of the states to have a “well-regulated militia.” But a narrow group of justices, appointed by presidents who were funded by the firearms industry and the pro-gun lobby, have flagrantly misread the 2nd Amendment to be about the individual ownership of any kind of firearm – and not the “well-regulated militia necessary to the security of a free state” – and thus undermined the ability of the states and the national government to protect the American people from mass murderers, assassins, and other very violent people.

Gustavus: What is one of your favorite quirks or oddities in the history of American jurisprudence?

PF: I will tell you about a funny case that illustrates the oddity of the Supreme Court. In 1983 the Court decided a tax case called Nix v. Hedden. A law of 1883 levied a tariff on imported vegetables, but not fruits. When the Nix company imported tomatoes from another country, the US government collected the tariff. But the Nix company argued, correctly, that the tomato is a fruit, not a vegetable. Nevertheless the  Supreme Court decided that in “common parlance tomatoes are vegetables” and the Court disregarded the scientific definition of a vegetable or a fruit. The Court should have decided the other way, and then Congress could have amended the law to include tomatoes.

Gustavus: If you could change one policy or practice for the Supreme Court, what would it be? Why?

PF: I would eliminate life tenure for Supreme Court Justices. Instead, I would have them serve for 18 year terms and after that they could retired with full pay. They could also be reappointed. I would to this for all federal judges. This would be constitutional. The Constitution says that the justices serve during “good behavior,” which means they cannot be fired or removed from office for their decisions. But the Constitution does not require that they serve for life. This would protect judicial independence, and it would encourage presidents to appoint seasoned, senior justices, rather the current practice of appointing people who are young just so they will be on the court for a very long time.


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One Comment

  1. Jack Little says:


    Especially his last point, no supreme court justice should be elected for life. When the court was founded, life expectancy was about 50. The Founders never intended people to serve more than ten years.

    Keep up the good work Gustavus!