"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Sunday, May 1, 2016

The Supreme Court–Denying The Electoral Process And The Will Of The People

The Supreme Court, perhaps the most important pillar in the three-cornered American judicial system, is the last resort for disputes that have originated in the lower courts or as often in the electoral process.  The Court is often asked to rule on the legitimacy of state laws many of which have been brought to the floor by referendum.  States which have passed laws on gun control, abortion, marriage rights, and other contentious issues are often challenged by interest groups who doubt their constitutionality.  The Court’s ruling is final, and although its judgments can be overturned by later Courts, neither state legislatures nor popular referenda can reverse any Court decision.

Image result for images supreme court
The main purpose of the Court is to adjudicate above and beyond popular opinion.  Certain rights, if codified in the Constitution, cannot be abrogated, no matter how strong the popular support to do so.   Many Supreme Court decisions have been challenged, however, and observers and critics have faulted the Court for imagining rights that never existed.

Dred Scott v. Sanford and Plessy v. Ferguson both ruled in favor of the white majority.  In the first case, the Court ruled that blacks whether slave or free had no rights or equal protection under the law.  Plessy confirmed the concept of ‘separate but equal’, thus supporting segregationists arguments.  Korematsu v. US  legitimized Japanese internment.

From today’s perspective these decisions were flawed and were overturned by subsequent rulings which established the principle of racial equality.

In more recent years, the Court in Roe v Wade ruled to legalize abortion despite the vocal opposition of many who said that there was no right to abortion to be found in the Constitution, and that in its use of the Right to Privacy argument, the Court perverted the judicial process because of its own political agenda. 

The Court has recently ruled on the right of gay marriage; but as in the case of Roe many conservative observers have commented that this too is an abrogation of the rights of the electorate.  Both abortion and gay marriage are highly divisive and contentious issues, both with legal, religious, civil, and philosophical implications; and why should nine Justices rule on them by judicial fiat?
The Court is political, they say, a fact obvious to anyone following how closely Court decisions follow partisan party lines.  Those Justices nominated by conservative Presidents and confirmed by conservative legislators will invariably hew to conservative principles.  Liberal members of the Court will similarly follow their own political philosophies.

If the Court’s decisions so clearly reflect the political zeitgeist of the era; if Justices, owing their tenure to the political process, vote along party lines; and if the Constitution is like the Bible or any other sacred text, always open to interpretation; then why should the Supreme Court have such final authority, trumping the other two branches of Government.

Justice Robert Jackson, speaking for the majority in Minersville Board of Education v Gobitis said the following:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
In other words there are certain rights which are indeed inalienable and they can be found in the Constitution.  The Supreme Court’s task is to find them, and when they do, it is right that their ruling should stand in perpetuity.  The majority does not always rule nor should it.

The two points of view are in direct opposition.  One regards the Supreme Court with the same respect Catholics give the Pope who, after reviewing all sides of a case regarding faith and morals makes an ex cathedra decision – i.e. one which has been sanctioned by God himself.  The Supreme Court justices, once on the bench, are endowed with a special power to interpret the Constitution and rule according to what they find. Their judgment, like the Pope’s is final.\

Image result for images of pope innocent iii

The other point of view says that the Justices are simply men and women who because they have found favor with Presidents and configure their testimony to please Congressional inquisitors, judge through the lens of political philosophy.  They are no different than any other citizen; and without the cloak of judicial legitimacy and technical training, their instincts are no different.  Why should they abrogate the electoral process?

Those who believe that the Supreme Court must uphold the fundamental, God-given rights enshrined in the Constitution and supersede the will of the majority miss an important issue.   The way Justice Jackson phrased the argument, not only is there an anointed right of the Court to adjudicate cases which come before them, but there is a suspicion of the inherent – and equally God-given right – ability of the majority to vote responsibly.

Jefferson and Hamilton fought for years over this point.  Jefferson believed that the will of the people would always be fundamentally right; and that even though many in the minority might disagree with electoral decisions, the rightness of majority decisions should be respected and accepted.


Hamilton disagreed and felt that not only was there an inherent right in the majority, the masses could never be trusted to make right, just, and appropriate decisions; and that government must have a buffer between their views and the final disposition of the law.  He argued for a powerful legal body which would be comprised of men who thanks to their intelligence, breeding, background, and proven moral principle would act in the best interest of the people regardless of or even despite their will.

Hamilton was forced to compromise, and the Senate is the result.

Hamilton’s idea was similar to the raison d’etre of the Supreme Court, but his appointed ‘House of Lords’ would, unlike the Court, would be assailable and decisions subject to revisions and popular appeal. 

What Jackson missed but Hamilton surmised was that the majority was not arbitrarily formed or configured in a way to always suppress the minority.  There is nothing dangerous about majorities per se because although they may dominate for a time,  they are always subject to the pressures of former minorities which take their place.  There is, therefore, no reason for the Supreme Court to protect the rights of minorities because they will always have the ability to regroup, strengthen, and challenge the majority.

But are there such things as inalienable, God-given rights?  Wasn’t that conviction only based on the historical context of the time of the Founding Fathers?  The Enlightenment focused on rationality and civil rights but within a religious context.  Rationality was to be applied in the search for God and religious and philosophical truth.

                  John Locke www.constitution.org

Certainly today, as American-style liberal democracy is falling on hard times, with many who dismiss it as antiquarian.  ISIS and its radical Islamic followers believe that individual rights, popular representation, freedom of expression, and other freedoms mean nothing when considered within the context of religious salvation.

Authoritarian leaders like Vladimir Putin and the Communist Politburo of China similarly dismiss the idea of the absolute nature of civil rights.  China believes that economic and social progress for the masses can only be achieved through homogeneity and an intolerance for diversity.  ‘Discrimination’ against Uighurs or Tibetans means only insisting that they drop their separatist claims and join China fully and unequivocally.

Who is to say that a Japanese-style internment or mass deportation of Muslims could never occur?  How can anyone predict the future state of an already dangerous and chaotic world?  It is not unconscionable to imagine a purposeful, political ‘discrimination’ which would defy current thinking about inclusion and diversity.

No matter how much may believe in the Rights of Man in principle, when push comes to shove more prosaic issues will always upset the philosophical applecart just as they have in the past.


The point is not that history is not cyclical or repetitious; or that the ebb and flow of societies’ values will always wash up ideas that are accepted, then rejected ad perpetuam, but that given such circularity and moral relativity, then the most number of people should always have a say, not a few select, biased members of the Supreme Court.

A government ‘of the people, by the people, and for the people’ can only be assured if the electoral process is not impeded on the basis of supposition and ex cathedra authority.   Laws passed by the people (and under federalism, the states) should always prevail with the understanding that under our democratic electoral process, they can always be changed once majorities cease to be and others take their place.

Big data offers and excellent example of 21st century democracy.  Many have argued that individual states rights have little meaning in an electronically-mediated political world; and that national referenda would be more responsible and representative of the people.  In other words, the model for true democratic representation has been demonstrated, and it is time to reassess the very foundation of our government.  What is the purpose of a so-called ‘representative House of Representatives? Or the Hamilton-inspired Upper House or Senate?  Or the Supreme Court.

Whatever the outcome of these structural reviews (and change is not likely for decades), a reconfiguration is urgent.  No more ex cathedra decisions from the Supreme Court and a return to popular democracy to determine the current relative moral values of the country.

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