WHAT WOULD JUSTICE DONNELLY BE THINKING TODAY?
I try to keep my columns timely, so with the current news emphasis this week I went back into my archives and found an article I wrote for this newspaper in 1982 about Judge Robert T. Donnelly, Chief Justice of the Missouri Supreme Court from 1973 to 1975 and again from 1981 through 1982. I believe Justice Donnelly, who was born and practiced law in Lebanon, was one of the most intelligent men to ever sit on the Court.
I had asked him for an interview that summer and he graciously consented to meet me in Jefferson City so we could talk about a fiery debate he had with then U.S. Senator Thomas Eagleton on April 30, 1982.
It all started when Justice Donnelly delivered his State of the Judiciary address to the Missouri General Assembly in January 1982 wherein he proposed an amendment to the U.S. Constitution which would have effectively limited the power and jurisdiction of the U.S. Supreme Court.
This proposal met with strong opposition from Senator Eagleton who denounced it on the floor of the U.S.Senate on March 17, 1982. Although both men were Democrats, there was such strong disagreement between them that the Missouri Bar Association set up a debate so they could air their views in a public forum.
In the April-May issue of the Journal of the Missouri Bar, Charles Blackmar, Professor of Law at St. Louis University, published an article critical of Justice Donnelly’s proposal, stating that “Judge Donnelly’s thesis is based on an unsound analysis of the Constitutional process and, if implemented, would effectively destroy the Bill of Rights as an effective check on state governmental action.”
Judge Donnelly told me he felt he had been “too subtle” in his speech to the General Assembly and further explained “All I meant to do was assure that the interpretation of the Constitution by the U.S. Supreme Court would not become part of the law of the land unless it were approved within the constitutional amendment process.”
He went on to state that “If they had just gone to the amendment process set out out in Article 5 of the Constitution they would have found that (my proposal) was just a rescript of Article 5 with some insertions.”
He was completely bewildered about why the Senator would attack him in such a fashion. I suggested the possibility that Senator Eagleton was “running scared” because of the 20 or more bills which were then pending in the Congress seeking to limit the jurisdiction of the Court in certain areas. He agreed this could very well have prompted the Senator’s reaction to his proposal.
In his speech to the Missouri General Assembly Judge Donnelly stated that the federal judiciary has “injected federal control into almost every facet of the lives of our citizens”’ and that after WW2 the Supreme Court ceased to function as a court and molded itself into an “organ for control of social policy” by utilization of he 14th amendment.
He told me he thought the Court had overstepped its boundaries by finding a right to privacy in the 14th amendment. He said his personal convictions about abortion - the fact that he didn’t believe in it - were extraneous as a judge, but he still believed that the Roe v. Wade decision was “as blatant an example of judicial legislating that you can find in the constitutional jurisprudence of this country...a terrible arrogation of power.”
I asked him about a speech he had given a few days prior to our meeting to a group of Juvenile Court officers wherein he was quoted as saying that modern education often fails to instill moral values in children, and that he believed that perhaps allowing prayer in the classroom would help alleviate this failure.
He referred me to an article written by Terry Eastland,a newspaper editor in Norfolk, VA , and reprinted in the Wall Street Journal in February of 1982. Eastland dealt with the problem of trying to teach basic morality in the public school system without violating the establishment clause of the First Amendment. This was one of Judge Donnelly’s major concerns because he felt very strongly that we need to teach young people about the core values of our democracy.
Judge Donnelly was particularly impressed with Eastland’s statement that we have come to the place in society where “even the mention of virtue is considered a threat to liberty.” It was Judge Donnelly’s belief that “everything the courts have done since the Second World War have tended to destroy the family.”
I’ve often wondered what Justice Donnelly would think about the Court today. He had such great insight into the issues of the day and I noticed in re-reading my original column that the more things change, the more they remain the same even 35 years later. He told me that day in our discussion that the news media is biased and presents a distorted picture to the public. He was speaking specifically about the uproar in the press about Senator Eagleton’s “scurrilous attack” on him, as he called it, but obviously this is still an issue with both political parties today.
In all my notes with regard to this interview I failed to find the one quote I wanted to use here but I shall paraphrase it for you. When I asked him why at this late stage in his life he chose to speak out on some very controversial matters and thereby create such a political firestorm, he replied something to this effect. “I just didn’t want to die with the music still in me!”
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