And Then There Were Two...
 
 

The United States Supreme Court issued a ruling the other day, one with which I am not happy.  This is not unusual.  I routinely disagree with the High Court, as well as myriad other courts and judges, over matters of law.

The ruling, which is not the subject of this writing, was about recent campaign finance legislation and the legality of limiting certain soft contributions.  The Court held that congress can pass laws against influence-peddling in politics.  I hate influence-peddling, and politicians in the corporate pocket.  I also think that congress can constitutionally pass these laws.  So maybe you’re hopelessly confused as to why I said I disagree with a decision with which I just said I agree.

The explanation, also not the subject of this writing, is that the Majority justified its ruling in part on its belief that money corrupts politics.  I happen to share this belief as well, but that does not excuse the Court for using it as a legal ground.  Under the power granted it by the Constitution, it does not have the luxury of trying to foresee all ends and warding off supposed problems ahead.  The Court is not our nanny.  It is there to interpret and protect the letter and the spirit of the Constitution, not to save us from ourselves. 

Such decisions are dangerous as precedent, and represents a step backwards in realizing the potential of our founding documents.  The same type of argument was used, by the way, in the 2000 election case, in which the Court intervened in a state case because it believed our democracy was threatened by a delay in the transfer of power. 

The Minority opinion in the campaign reform case, which is not even close to the subject of this writing, was no better.  Scalia actually argued that the wealthy and the corporate leaders are more qualified to influence lawmaking than other citizens, the arrogance of which left me in shock and awe.

I believe, as do you, that the High Court sometimes makes bad decisions and that the judges are often quite biased in their interpretations.  Does that mean I should support, as some already do, the prudent-sounding call to limit the power of the Court through an amendment to the Constitution?  Shouldn’t I endorse, as some have recently proposed, a means for congress to overrule the Court, on the grounds that our current judiciary is indeed politically biased and not ‘independent’ as mandated by the Constitution?

Absolutely not, and it is getting to the point of this writing to tell you why.

In the first place, I don’t tend to agree with the idea that the bias found in so many (and in some philosophical way, all) of our high judges is properly political.  Our Founders’ idea of giving judges lifetime appointments and immunity from political removal or punishment to attempt political separation was a good and necessary one, and it still holds.  Indeed, on the current Court sit several ‘surprises’, in which the ideology of the president did not determine the positions of his appointments. 

I think our judges’ biases have been generally more cultural in nature, and while cultural biases can be very disruptive, cause bad decisions and be every bit as harmful as political biases, they are different animals.  They are pervasive to such a degree that it is hard to know what a non-culturally-biased judge would look like.  Until around 40 years ago, judges came from wealthy, conservative cultural environments, so the conservatives had a lock on the Court.  Yet even in the darkest of these days, when the court ruled in such  way as to allow for the existence of slavery, half of the American people thought slavery was just fine, and would have called them good, unbiased judges.  That was their culture as well.

The unique and original thing about our political system is not, as is always said, that we’re a democracy.  Democracy has been around for a long time, and it never works, because when one side gains more power than the other, it passes rules to cement its lead position.  It becomes the tyranny of the majority.  No, what makes us innovators of a system never before tried in history is that we’re a constitutional democracy.  That means that the fundamental rules are agreed to before the game starts, and that an independent judiciary protects these rules from the ravages of power.  And that those who rule are bound to the same law as everyone else.

Our judges have always had flaws, but to say that their cultural biases justifies taking their power and giving it to the politicians - who have no such duty to protect the law - is more than absurd.  It opens the door for that old failure of democracy, the tyranny of the majority.

And yes, while it is true that congress has before needed to step in to fix a judicial mistake, as in the cases of slavery and women‘s rights (it is still amazing to me that we had to pass an amendment to direct the judges that the phrase ‘all men are created equal’ means black men as well, and another to insist that the phrase is meant in the sense of ‘mankind’, which includes women), you will notice that these interventions are of a particular kind.  All of them serve to clarify or reinterpret rules, and come as new instructions with regard to the law which the courts are to uphold.  To my knowledge, no court has ever defied these instructions, for they claim the same fealty to constitutional amendments as they do to the Constitution itself.

An amendment to limit the constitutional power of the judiciary to interpret the law is of a whole new species, one which has never been tried.  The subject is the Court itself.  It attempts to remove power from one branch of government and confer it to another.  And of course the recipient of this power is in fact the very branch which itself creates and votes on the amendment to do it.  It doesn’t attempt to correct or direct the Constitution.  It changes it entirely.  It offers a very strange situation in which the courts may be forced to declare a constitutional amendment…unconstitutional.

Then who wins?  The one with the military?

Which brings me, finally, to my point.  Those who argue for such remarkable and unprecedented destruction to the Constitution are not considered 'fringe' or met with scorn from fellow conservatives, for they know what is at stake here, and so do I.  The Constitution is a liberal document.  It was liberal when it was written, and it is liberal today.  Freedom of association, freedom of speech, freedom of moral action, equality before the law, open and accountable government, all of these are today still considered liberal notions, and are still today resisted by the Right.  

And with great success.  Of the list I just gave, none are guaranteed to the American citizen with the exception of free speech, which can be punished but not forbidden.  Freedom of association, equality under the law and open government were recently suspended indefinitely because of our war on terror.  Freedom of moral action, called ’freedom of religion’, we’ve never had.

We must understand that when the framers and the signers of the Constitution went back home to their families, our country was not suddenly changed into the one described in their document.  The Supreme Court, head of one of the three branches of government created by the Constitution, did not even exist in any meaningful way for decades after the Constitution was ratified.  Every move toward the  Constitution has been a struggle.  The process of becoming that revolutionary country agreed upon so long ago has been grueling, and it is by no means finished.  Attempts to gain the liberal guarantees in the Constitution have always been resisted at every turn by the conservatives who have always opposed them.

And as I said, the conservative lock on the courts has been broken.  A few decades ago things started to change in the judicial system.  Judges no longer came only from the ranks of the wealthy, and they could make the bench with nothing other than demonstration of judicial aptitude.  Free from certain long-held judicial biases, they've begun to actually interpret the Constitution in all its liberal glory.

And if they continue to interpret the Constitution the way it was written, the conservatives will continue to lose a lot.  Many of them know they have to get serious about this threat.  Right now a storm over religious freedom brews in the courts.  The courts are beginning to say that religious freedom means freedom from strictly moral laws, and that is very bad news for those who want to fill our jails with non-violent, moral criminals.  Conservatives have to do something to stop the courts.

I am no prophet, but the stakes are high, and there is no other option for the conservatives but to try to stop the courts with a good old-fashioned power struggle.  The other two branches of government are controlled by a particularly nasty set of conservatives, and an opportunity may come with recent rulings regarding gay marriage, which the courts must allow if they are to follow the Constitution, but which is not very popular among the citizenry.  Watch for them to test the waters with a constitutional amendment to ban it.  And get ready to stop them.

I got the feeling we're in for a hell of a year.
 

December 23, 2003