Where do law and democracy meet? Cardozo Law Professor Suzanne Last Stone encourages students to consider
“Almost everyone knows that the Preamble to the United States Constitution begins with, ‘We the People,’” stated Yeshiva University professor of law Suzanne Last Stone during her course for the Shalem English Immersion Program. “But how many of us have ever stopped to wonder, ‘What does ‘people’ mean? Are ‘people’ and ‘citizens’ the same thing, for example, and how has the Supreme Court given meaning to this term?”
In the famous case of Dred Scott, Prof. Last Stone explained to students, the Supreme Court was able to rule that the former slave could not sue for his freedom, because blacks were not members “of the political community formed and brought into existence by the Constitution,” and therefore not eligible to file lawsuits in federal court. In these and other controversial Supreme Court cases surrounding America’s history of slavery and segregation, Prof. Last Stone, who is also director of Yeshiva University’s Center for Jewish Law and Contemporary Society, showed how decisions perceived to be based on political or moral—and not legal—concerns have led to crises of legitimacy in American constitutional law, and how similar crises have affected the standing of the world’s highest courts among their respective publics.
For Prof. Last Stone, whose innovative academic career has pioneered the comparative study of Western and rabbinic law, these crises offer useful windows onto the societies in which they occur, and the values that animate them. For example, she pointed out that the American debate between strict and broad constitutionalism mirrors in many ways the tension between liberal democracy and tradition that plays out in the legal, political, and social spheres of the Jewish state—which continues to grapple with the right balance between the two. “Going back to the original meaning of the Constitution implies respect for the past and for the act of consent given by the people at the time the Constitution was ratified,” Prof. Last Stone explains. “But what happens when it seems that the demands of contemporary justice conflict with a prior generation’s understanding? Does the phrase “We the People” refer to an evolving national entity? If so, how does the Court assure that the nation is evolving in accordance with the Constitution’s ideals, and why should the Supreme Court, rather than the elected representatives of the people, determine the basic character of the nation?” These are the sort of questions, Prof. Last Stone explained, that we face in all legal systems. She ended by challenging students to compare the reference to “the People” in the Preamble to the United States Constitution with the description of “the People” in the Israeli Proclamation of Independence.
