Thursday, February 07, 2008
Why the Supreme Court Matters – Not Just for the Right, but for Democracy
As we head down the backstretch of our primary campaigns the issue of the Supreme Court is becoming, at least for Republicans, a bigger and bigger issue. With at least 2 and maybe more justice set to retire or pass away in the next 4 years, you will appoint them matters a lot.
The traditional narrative is that Democrats will nominate activist judges while Republicans constitutional traditionalists. This has not always worked out this way (Kennedy put Byron Wizzer White on the bench, Bush the Elder, Justice Souter), but the general narrative works.
But after forty plus years of judicial “politics” I would hope both sides are ready to step back from the brink. And yes, here I am doing an Obama by suggesting stepping back from the brink is to move towards the constitionalist position. But here is my rationale.
First, if one is going to say that the Constitution is a living and breathing document, as activist usually do, what you end up with in the end is the loss of authority, both for the document and for Court. Activists today may end seeing any number of rights hidden in the penumbra of the Constitution, but they forget that by opening up the penumbra to examination that they likewise set up the possibility that the other side may find similar hidden rights – and this time the rights could be use to squash the other side.
This view of the Constitution falls under the postmodern rubric of reader response theory. What matters is not what the writer meant, as if he or she even knew, but what the reader (in our case 9 readers in black robes) sees it meaning to them. The original idea behind reader response was not a bad one. How a piece of literature affects us does matter. For example, James Joyce, a fairly anti-Catholic ex-Catholic, wanted to paint the Church in a negative light in A Portrait of An Artist as a Young Man. However, when I read this book as a 17 year old, struggling with undiagnosed bi-polar issues and a nascent faith, I found the portrayal of faith and the Church to be compelling. Not of course Joyce’s intention, but it is indeed what I experienced from the book.
The problem though is then how to gain a shared meaning. Whatever the book or document might mean to me, if the reader is the only judge, and only from their perspective, then the opportunity to share meanings is ultimately lost. I can “impose” my meaning on the book onto you, but that is an act of violence (forgetting for a second that I have already done violence to the author’s unknown original intention in writing). So, we can no longer share in a document or book, only see it through our own eyes.
What is lost? The essentials of unity and the necessary shared meanings that give rise to society structure. We cannot exist as a society, but only as a collection of individuals, either living mutely because of our inability to share meaning or violently, as we try and impose our meaning on others.
The Constitution is not a stand alone document. We have the Declaration of Independence, the Bill of Rights, and maybe just as valuable for decoding the meaning of the authors, the Federalist Papers, which helped to guide legislatures on the ratification of the Constitution, provide us an interpretive lens into the original intent of the Constitution. So, while we cannot necessarily get back to the absolute original intent of the Constitution, we can get back to a series of likely expectations that the authors meant, and thus can, if we agree to work with that interpretation, share a starting point for debate.
Alas, dominated by reader-response theory, the Progressive population of the legal society sees this as not only unnecessary, but actually without benefit. Since the Court began to move in the direction of the “living” document theory, beginning in the mid 1930s with F.D.R.’s appointments (including Judge Frankfurter who admitted at times it did not matter what the Constitution said, only what he saw had to be done – again, read The Forgotten Man), have we lost shared meaning in our country? Can it be doubted that as the reader-response theory took control of the Court in the 1960s that our country has been more divided on more issues than at anytime since the Civil War? And this divide has not just been on the issue of racial justice, something that activist point to as proof of their perspective (but which I would add is actually a true and proper reading of the Constitution and the 13th, 14th, and 15th Amendments.). A country whose two “wings” are no longer able to talk because their language has become so different (another aspect of postmodern development as seen in the philosophy of language movement, and the rise of vagueness in meaning), is not a healthy society. The question is how long can it hold together? No one I know wants to see the U.S. dissolve into two or more nations. But can this be avoided when our foundational documents themselves have lost implicit meaning through the work of activist judged and their “living Constitution” theory?
The second major point, and it is indeed related to the first, is how a living Constitution relates to the masses. Since the 1960s the Court has ruled on many highly contentious issues, usually siding against the majority of Americans viewpoints at that (and indeed later) time. Now, one can argue that if something is unconstitutional, it does not matter what the majority believes or thinks. I agree with this notion, and indeed the Constitutional guarantees against the tyranny of the masses (which includes the oft-maligned but well-serving Electoral College form of election for President).
The question is however what does the Constitution actually prohibit? And, on what basis do practices that go to the founding of the country, including prayer in school, the definition of marriage as one man and one woman and the like, now become unconstitutional? Let me state up front that I am no fan of prayer in school, at least as led by the lowest common denominator theology that we see, for example, in church-states school systems such as the United Kingdom. But what is the proper way to deal with such disputes?
Traditionally the manner of dealing with a program or action that an individual or group dislikes is to seek legislation to change it. In some cases, where the right to do something is spelled out in the Constitution, the change may require a Constitutional Amendment. While the Civil War defeated the Southern Confederacy, slavery itself was banned, not just in the South but in Union States like Delaware, Kentucky and Missouri, by the enactment of the 13th Amendment. The fact that slavery, evil as it always was, was specifically allowed by the Constitution meant that it had to be dealt with through the Constitutional Amendment process. In our nations history only 26 Amendments have been added – 10 all at once, and two of which negate each other – 18 and 21.
The Constitutional Amendment process is long and involved. This is as the founders of our country wanted it. This way mere emotion or particular fancies of a society at any given time would not be added into our Constitution, and because it requires the approval of ¾ of the states, after being recommended by 2/3rds of both the House and the Senate. This means that by the time an Amendment is ratified, there is a general agreement within the country that such an Amendment is generally believed to be best.
What activists judges have done on a number of issues – from prayer in school, to church-state cases, to abortion, gay marriage, the pledge of Allegiance and so on is bypass this process. The Court of Appeals panel of a simple majority (if the case is not taken up by the Supreme Court) or the Supreme Court by a 5-4 vote can change the Constitution and thus “end” political debate over what are primarily political issues. But this of course does not end debate. It simple takes power away from the people and gives them to an elite, non-elected, and ultimately unaccountable group of American citizens.
Democracy, especially in its Republican form that we exercise in our country, depends greatly on the consent of the governed. This is basic to the liberal view of humanity – the right of the individual to choose his own course and to be restrained only by the clear and unequivocal voice of society. Ruling from the bench to change and redistribute rights, without benefit of political redress, takes power away from the people and ultimately creates dissension in the masses. The governed no longer give their consent and their loyalty to the government.
This has been the great mistake of the Democratic Party in the past 70+ years. A party which traditional stood by the “little guy,” for Democracy, and for the power of the people has been replaced by the power of elites to rule without guidance from the citizenry. This is a problem which increasingly many in the Republican Party also suffer from, assuming that their way of governing the people is best, and thus seeking through judicial fiat to overrule the ignorant masses.
Since the 1960s and 1970s as the Courts of America have overridden the people without their consent on issue after issue, the trust in government and the level of societal cohesion has suffered greatly. Whereas, for example, prior to January 1973 each state had the ability to decide on the legality of abortion, the Court found not just a right to abortion, but its absolute right in the Constitution and thus sought to end debate. The governed would simply have to consent. Of course, that has not been the case and for the past 35 years an active Pro-Life movement has sought to regain the right to govern themselves on this issue.
It is not unlikely that in a court made up of two new picks by the Democrats sometime in the next decade will see a Constitutional Right to gay marriage (and multiple partner marriage?). On what basis does this new right occur? Have the governed chosen to enact such a right? No, in fact in state after state we see traditional definition of marriage upheld. But the day is soon coming when the rule of the few will matter more than the consent of the governed.
I believe in the Consent of the Governed as essential to our future. If we want to see abortion outlawed nationwide, since it is not specifically spelled out in the Constitution, we will need to pass a Human Life Amendment. Can the Pro-Life side gain 75% of the states agreement? Probably not, but if the society cannot agree, then there is great damage to be had by “Conservative Activists” not just overturning Roe vs. Wade, but by judicial fiat making abortions in all places and everywhere illegal.
The fact remains that activist judges do not believe in the rights of the governed. They believe in their own judgment over and above all else. I have challenged many who are in the activist camp to take their ideas to the people – to pass a bill in Congress or a Constitutional Amendment to make gay marriage legal, to make abortion legal, to make the usage of illegal drugs legal, to make the Separation of Church and State not merely a phrase from a Jeffersonian letter but to add it to the Constitution through the Amendment process. If this happens, it means on the whole that each side has had their chance to rationally speak to the issue, to persuade and be persuaded, and now my consent to be governed has been met. Another other way of attacking these great and divisive issues of our day will lead to tyranny and to a greater sense in our nation of disunity.
Since the F.D.R. administration we have experienced a rise not just in judicial activism but in regulation by administrator instead of by elected officials (these regulations operate under the same principle as judicial activism – pass by stealth and power what cannot be agreed on by the people through the vote). Are we a better and freer country for it? I cannot honestly say yes.
I love America and am ever so glad that God chose to have me born into this nation. Our Constitution, an imperfect document that is rooted in the nearly perfect power of the governed, has served us well. But as we enter into the closing stages of the political primary season, I encourage you and all who read this to ask these simple questions:
1) If the Constitution has no basic meaning, how can we agree on anything?
2) If a judge can override the will of the people on an issue you agree on in an area not specifically spelled out in the Constitution, what will
happen to you when the other side gains power and by fiat makes your policies and rights unconstitutional?
3) Why do you not trust the will of ¾ of the states to enact major changes to our Constitution? Why do you trust 5 people on the Supreme Court
more than your neighbour?
4) We hear a lot this political season about the message of unity. How can we have unity if debate and votes no longer matter?
