Saturday, January 18, 2014


As a teenager attending Cornell University, I politely declined an offer by a law firm to join it on its partnership track as soon as I passed the Ohio bar.  At the time, I had just transferred from engineering physics to the liberal arts, major—two majors, as it turned out (philosophy and English)—and future career then unknown.  Since that smart decision, I have nevertheless paid more than the usual attention to legal matters as I have followed the Supreme Court of the United States (SCOTUS) down the rabbit hole of decisions distorted by its contortions of history and language.  Almost imperceptibly, SCOTUS is redefining the Constitution to move it away from basic democratic principles.

SCOTUS itself was never intended to be a democratic institution.  Its members are nominated and usually confirmed, not elected; and terms are lifetime, not limited.  The assumption of the Founders was that such judges would be among the best legal minds and the least likely persons to be influenced by non-judicial considerations.  I do not know the history of SCOTUS; I do know that not all of its decisions have been wise or even right ones.  But I believe that, except for a few notorious cases involving equality under the law (of all things!) or the Bill of Rights, it has enjoyed the respect which the Founders expected it to enjoy.

Like its many predecessors, today’s SCOTUS is not demographically representative.  Of its nine sitting members, six are men, and three are women; seven are whites, one is black, and one is Hispanic; six are Catholics, and three are Jews.  Unofficially divided by political orientation, five (all Catholics) are conservative, and four are liberal.  Except for Associate Justice Sotomayor, SCOTUS aligns Catholics against Jews on many divisive issues.  As I see it, the major implication of the religious and political orientations of the SCOTUS majority is a propensity to support institutions over individuals, corporations over governments, but both over citizens.  Its record reflects this propensity to render decisions preferring non-democratic institutions and interests to democratic ones. 

In accord with such propensities, some justices in the majority subscribe to the doctrine of originalism as their guidance in deciding cases.  Simply put, the doctrine holds that what the writers of the Constitution intended as its meaning in the late eighteenth century should guide Constitutional decisions in all succeeding centuries.  This doctrine has problems so egregious—it includes slavery and counts blacks as 3/5ths of a person for voting purposes—that they should embarrass its believers.

First, but perhaps least, intended meaning is difficult, if not impossible, to establish with requisite certainty.  The reasons for the difficulty are clear: at the time, issues were complicated and nuanced, people had different and divided opinions, and words have since changed their meaning.

Second, the doctrine pledges allegiance to a belief in literalism in textual interpretation, a belief which typifies the fundamentalist quest for certainty in a changing world.  Not only is literalism defiant of the facts of lexical change, but also its application disregards or distorts the facts relevant to changed and ever-changing circumstances and conditions.  It is a doctrine of counter-factuality, which hardly sorts with the traditional legal obligation to consider the facts of the case.

Third, last, but perhaps foremost, the Constitution itself provides for amendment.  The implication of this fact is transparent: the Founders anticipated the need to change its provisions, whatever their intended meaning, to ensure that the country could adapt to changing circumstances and conditions.  Those members of SCOTUS subscribing to the doctrine of originalism are reading the Constitution selectively by placing their religious and political preferences ahead of their legal obligations.

Thus, the same members of SCOTUS regard only so much of the Constitution and case law as serves their prejudices in cases before the court.  During their confirmation, all professed adherence to precedence—the doctrine of stare decisis—, that is, a reliance on decisions since established as Constitutionally settled case law.  Yet some of these same members of SCOTUS have had little difficulty departing from such precedents—such departure is pejoratively described as activism—in some cases to effect their positions on substantive issues.  Most notable have been decisions in which, in violation of the doctrine of the separation of powers of the branches of government, these members have declared Congress to have legislated wrongly, not unconstitutionally—the very definition of the activism which conservatives pretend to abhor.

What I find worrisome is that many members of SCOTUS have inclined to disregard the Preamble of the Constitution.  The Preamble does not state provisions for governance under the Constitution; it has the more important purpose of stating the purposes of that governance and, by implication, of the separate provisions of the Constitution.  As the country divides about the role of government, SCOTUS should accept the Preamble, not originalism, as the fundamental guidance for the court and the country.

Of the many possible areas of concern about a SCOTUS unhinged from history and language, two of the most important are listed first in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Context is not everything, but it is almost everything, when it comes to defining “freedom of religion,” which is not the phrase in the Bill of Rights, and “freedom of speech,” which is.

The first thing to say about freedoms or rights defined by amendments to the Constitutions is that, under the traditional understanding of the law, none is exempt from limitation by circumstances which threaten danger to the public good or damage to private citizens.  Otherwise, for example, Congress could make a law prohibiting a “free exercise” of one person’s religion if that exercise required, say, the forcible conversion of another.  But the legal thicket of “freedom of religion” cases is a tangled one, with more attention paid to its “exercise” than to its “establishment.”  If the religious have a fear, it is not that the government intends to define and support a national church or a religious doctrine, but that it aids and abets those tendencies in society which they believe undermine religious faith itself: modernism, relativism, secularism, and science.

A recent (and continuing) instance of this fear is the flapdoodle over the identity of the payer of insurance policies which must provide for contraceptive prescriptions and other medical services.  Some, especially Catholic, religious health providers and schools serving the public and receiving public funds claim that requiring them to purchase such policies for their employees violates their “freedom of religion” because it requires them to support practices contrary to their faith.  Not content to stop there, they further claim that requiring their insurers to provide such goods and services, even if paid for by the insurer or the government, violates their religious freedom.  This position overthrows decades of precedent whereby health and education institutions are subject to public law, and have often voluntarily provided such goods and services without compulsion by law.  A more extreme version of this kind is the claim by certain businesses subject to the same insurance requirements that they have the right to refuse such requirements if they conflict with the owner’s faith, though it imposes costs upon employees.

All such claims equate the standing of individuals and institutions in the matter of freedoms or rights.  The effect of such claims is to make institutional claims of “religious freedom” the basis of a new doctrine of interposition and nullification.  Yet it is entirely possible that a preponderantly Catholic SCOTUS will uphold such “religious freedom” because of political and religious, not legal, allegiances.

The second thing to say about freedoms or rights defined by amendments to the Constitutions is that, under the traditional understanding of the law, none may draw distinctions among citizens without due process of law to achieve a paramount public good.  Thus, courts are overturning laws which deny same-sex partners the right to marry.  It remains to be seen whether SCOTUS will uphold such lower court decisions on this matter and thereby invalidate not only state laws, but also state constitutional provisions, to the contrary.

However it decides the Constitutionality of laws banning same-sex marriages, SCOTUS has decided to introduce inequality into American’s democratic decision in the name of “freedom of speech.”  Since the founding of this country, all Americans have had the right to speak as they wished.  Of course, to make such statements, we must look away from restrictions on slaves (and perhaps Indians), the Alien and Sedition Acts, and other occasional episodes of government suppression.  At the same time, the recognition of these abuses reflects the distance which we have traveled toward extending this right.

However, from the beginning, no one was foolish enough to think that a free press, an institution under private ownership, did not give owners and, with their permission, editors and columnists, not only the right to express their views, but also better odds of their being known (and influential).  The 1980 Republican primary debate between Ronald Reagan and George Bush exemplified the power of money to control the media.  When Bush wanted to criticize Reagan’s “voodoo economics” at a primary debate, Reagan took the microphone from him, with the explanation that he had paid for it.  Although the concentration of media holdings in fewer and larger corporations is worrisome, most Americans accept that a free press has a louder voice than free people do.

But SCOTUS is doing great violence to the concept of “freedom of speech” by defining money as speech.  As our acceptance of the advantages enjoyed by the media suggests, we know that “money talks.”  Of course, most people know that this metaphor is just that, a figurative use of speech, not a literal statement of truth.  But the recent SCOTUS decision to overturn federal and state limitations on financial expenditures in political campaigns now makes the metaphor literal.  Worse, this abuse of language extends the advantage of money to pay for a big microphone to private individuals unaccountable to anyone but themselves and often unknown or inaccessible to the public.

Of course, such abuse of language is very old.  Early in the nineteenth century, the courts held that corporations and other institutions were persons, with the same rights guaranteed people thereby guaranteed these organizations.  Yet, repeatedly, companies get preferential treatment in the legal system.  Corporations charged with crimes avoid prosecution or penalties by signing consent decrees to obey the law in the future.  I know of no state or federal court which allows private citizens to sign consent decrees to escape the course of legal proceedings.  When we know that many of the conservative members of SCOTUS attend paid-for junkets to corporate-sponsored seminars at resorts, we can suspect undue influence on court decisions helping powerful corporations and rich people, and handicapping the legal freedoms or rights of others.

The trend in court appointments has turned SCOTUS toward increasingly anti-democratic principles and positions.  The only way to reverse this trend is to place a premium on the political and religious philosophies of presidential and senatorial candidates as they bear upon their selection or approval of SCOTUS nominees.

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