The Seventeenth Annual Kenneth J. Hodson Lecture. George Mason, John Marshall, and the Constnution

• Author: by Chief Justice Harry L Carrico
• Pages: 01

Supreme Court of Virginia

The Kenneth J Hodson Char of Criminal Law was established at The Judge Aduacate General's School on June 24, 1971 The choir was named after Mqjor Geneial Hodson, who seroed as The Judge Advocate General from 1967 to I971 Geneial Hodson retired in 1971, biLt was immediately recalled to actwe duty to seme as ChiefJudge of the Court ofMilitary Reuiew. He seroed m thatposLtLon until March 1974. General Hodson serued ouer thirty years on actme duty. Durrng that time, he was actiue in the Amermn and Federal Bor Assouations, and he authored much of the federal milttoryjustice legislation emsting today. He was a member of the original staff and faculty of The Judge Aduacate General's School ~n Charlottesuille. Virgmta. When the JAG Corps was oetmoted LIS a regrment in 1986, General Hodson was se. lected as the Honamry Colonel of the Corps.

On March 24, 1988, the Chref Justree of the Supreme Court of Vir-ginto, Horry L. Corr~co,delmered the seventeenth Kenneth J. Hodson Lecture Chef Justice Corrico recemed his J.D degree in 1942 from George Washington Umuersity, where he also u)os on undergraduate. From I943 to I945 and from I946 to 1951, he was the Judge ofthe Trral Justice Court inow General District CourtJ ~n Fairfox County. From 1945 to 1946, he serued ~n the UnLted States Naval Reserue. He enteredprivatepractLee cn 1961. but ~n 1956 returned to thejudiciary

a8 Judge, Sixteenth Judmal Circuit In 1961 he become a Justice of the Supreme Court of Virgma. He became ChLef Justice of the Court on February I , 1981. ChiefJustm Carrieo LS a member ofthe Board of Drectors and Fmt Vice President, Conference of Chief Just~ces; a member of the Board of Directors of the Notional Center for State Courts, and a member of the CammLttee on Federal-State Jurtsdbctron, Judicial Conference ofthe United States. Chief Justice Carr~co's out-standing serum hns been recognized by the awarding of honorary Doctor of Laws degrees by the Unioersity of Richmond 119731 and George Washrngton Unweruty 119871

1. INTRODUCTION

I feel highly honored to be asked to deliver the 17th Kenneth J Hodson Lecture ~n Criminal Law At first glance, my Bubject would appear to have little to do with criminal law, for I intend to talk about George Mason, John Marshall. and the Constitution I submit. how. ever that It would be well for those ofus engaged in admmatenng the cnminal law to pause for B moment, step back from our absorbing tasks, andpin our countrymen in celebrating the bicentennial of the Constitution After all. it la to the Constnution that we must look for the basic source and inherent strength of the principles and proce-dures of our cnmmal law

True. we borrowed from the Enelish common law maw of the def.

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preamble lately? Every American should know it by heart Listen for a moment:

We the People of the United Statea, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of Amenca.

Beautiful words, aren't they? But they are working words, too. And therein, to me, lies the true meaning of the Constitution: it is a living document, working every day for all Amencam, prateding then nghts and preserving their freedom.

Let's think a little longer about some of the words m the preamble. The first three are "We the People." Can there possibly be three more important words in democracy's vacabulq? They we words of strength, of determination, the expression of a common and indestructible bond sufficient to nurture the infant nation's mrv~vdand support its rise to the leadership of the free world.

The next major phrase IS "in Order to farm a more perfect Union I'

The framers did not envision a completely perfect union. The framers were realistic enough to know that perfection always remains just beyond human grasp. But they certainly wanted a union more perfect than existed under the Articles of Confederation and one even more perfect than any yet devised by the mind of man. The fact we now observe the 200th anniversary of our Union's formation is proof indeed of the framer's success.

And we of all people wll want ta recall the words, "establish Justice." It should be a source of pride for all of u8 engaged in administering the country's legal syatem to know that the framers listed the need to establish justice second only to the necessity to form a more perfect union. The framers perceived that a successful pursuit ofjustice nec-essarily would involve constant adherence to a rule of law, and to this end they provided in article VI that the "Constitution, a d t h e Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land." Two centuries later, desplte the strain of such critical events a8 a presidential resignation, the Constitution remains supreme.

Next, we come to a trio of clauses: "to . rnwre domestic Tram qudity, provide for the common defence. [andl promote the general Welfare." The framers knew that the nation could not succeed without a calm citizenry, a strong national defense, and a government acting

for the good of the people as a whale. They sought to make the Constitution the cement that would hold our society together in safety while it flourishedfor thecommongoodof ail. Thoughsubject toaevere stress in periods of great crisis, the cement has held and grown even stronger.

Then, there are the wonderful words, "to . , secure the Blessings of Liberty to ourselves and our Posterity." Can any among us seriously question that the Constitution has succeeded in securing the blessings of liberty to all our people? Can any of us really doubt that "Liberty and justice for all" is more than a motto but a way of life in this great country of ours? The mswer to both questions, of course, 1s a resound. mg "no'" And we must never forget that we enjoy the blessings of liberty because two hundred years ago this nation ratified a piece of paper whose preamble stated that "We the People . . . do ordain and establish thia Constitution far the United States of America."

In truth, it IS a remarkable document whose birthday we celebrate. Most of the nations of this world live under constitutions that are less than thirty years old Yet ours has survived for two whole cen-turies and gives promise of being around for at least two hundred years more

To what does the CQnStltutlon owe Its longevity? Some scholars contend that the Constitution 1s durable because it 1s rooted in the will of the people. Others argue that the Constitution has survived so long because it derives from a higher law

This latter concept is predicated on the view. that there are certain principles which prevail because of their eternal value, regardless of what political force happens to be exercising authority at any given moment An ancient philosopher expressed this idea when he said, "True law 1s right ~eason, harmonious with nature, diffused among all, constant, eternal " He also said "We are born for justice, and nght is not the mere arbitrary construction of opinion, but an Institution of nature "A decade before the Phildelphia Convention of 1181 ever convened, Thomas Pame called for a conference to frame what he termed a "Continental Charter," which he envisioned a8 reflecting a higher law He said, "Let [the Charter] be brought forth [andl placed in the divine law, the word of God Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy,

. . in America the law IS king "

But, in my opimon, these views are much too abstract to explain the endurance of the Constitution. To me, the Constitution has en-dured because, as I mentioned a moment ago, it is a living document, working every day for every American. How does the Constitution

19881 HODSON LECTURE

work for us? Remember the part of the preamble which says that oneof the reason8 for the Constitution's adoption was to secure "The Blessings of Liberty." What this...