Someone made this thread fresh. The Const'n is our supreme law. No doubt about it. The problem occurs b/c the Founders deliberately left the word vague or incomplete when it came to issues on which there was little consensus. It was a compromise. They took care that the public was not aware of the compromises between North and South, small states and large states. If it were to function as a const'n rather than legislation or a party platform, the document needed the haziness that would bring great legitimacy.
I read const'nl history voraciously. One enormous influential factor in its formation was that no one present could envision anyone but George Washington as the first president. Well, John Adams had some hopes but they were dashed. Washington had been heavily criticized and mocked during the Revolutionary War. As the "hero" of the War, he had godlike status. He had a perfect blend of deep, agrarian Southern routes as a plantation owner but his commander in chief position exposed him to a very broad national and international view. Alexander Hamilton and he had almost identical view points on the role of the Const'n.
John Marshall was not the first Chief Justice. The Court was very boring in the beginning. Marshall strategized several cases, beginning with Marbury v. Madison to give the Court expanded jurisdiction. So many times the personal preferences of the actors of the Founding generation established tradition that remains to this day.
Contrary to what I believed from a public school education, the Court has most often ruled in the interests of property holders over individual rights. The Court ruled that the Interstate Commerce Clause did not give Congress much jurisdiction during the Great Depression. Child labor laws, health codes, a wealth of what we consider normal, were rejected. FDR became enranged. He announced he would greatly increase the number of justices until the Court was composed to his liking. Suddenly, the Court started upholding Congressional acts regulating interstate commerce clause. The switch in time that saved nine.
Several of my professors worked on pro-choice, Roe v. Wade. It was a concentrated legal pr campaign. People never raised the abortion is const'l right argument directly but chatted the justices at parties, etc. about broader legal topics that would influence their decision. Law review articles were co-ordinated to reach the objections of specific justices. Everything was above board but it created a climate. Women's groups wanted Justice Brennan to write the decision. He offered to do it but, in a stroke of bad luck, the other justices did not want him excommunicated b/c he was a devout, active Catholic. Blackmun offered. He based it more on medicine than law. The privacy right started to be defined in a series of cases unrealted to abortion.
I would characterize it as the majority of cases are clear under the Const'n. When matters become complicated and approach the borders of a concept, there is leeway in deciding one way or the other. The vast majority of cases are decided by very strong majorities or unanimous votes.
