Monday, February 4, 2013

The Constitution, the Supreme Court, Politics, and We the People

One easily becomes cynical at the predictability of our Supreme Court Justices and the inevitable manner in which their decisions seem to align with political predispositions. Was this what the Founders had planned? Of course not! At the birth of our nation there was no equivalent of our current political parties. There was also no reference to just about anything that we encounter in our daily lives: education, retirement plans, mortgage deductions, healthcare, women’s equality.... Yet the country continues on "guided" by our Constitution. How does that actually happen?

Consider this image of the first page of the original copy of the Constitution:

What was intended to leap off the page is the phrase: "We the People." Those are the first words of the preamble to the Constitution.

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

That statement makes clear the fact that the Constitution ultimately is to belong to and be for the people. Can we claim that to be true? Does the will of the people get represented in Supreme Court decisions? Definitely yes! Efficiently, no! Recall that there was a time when the Court seemed determined to declare all the New Deal legislation unconstitutional, but eventually they blinked under the pressures of the times and public needs and conceded.

Jeffrey Toobin produced an excellent little article in The New Yorker that reminds us that the political predispositions that guide Supreme Court Justices are, in fact, representative of our own political leanings: The People’s Choice.

Toobin takes the opportunity of the fortieth anniversary of Roe v. Wade to remind us of the torturous path taken to justify the will of the people to allow, under certain conditions, medically safe abortions to women who would choose to have one. There is obviously no mention of such an issue in the eighteenth-century document that guides us, but there are a lot of words. Some would have to be chosen to justify this wish of the people.

Toobin tells us that before he became a judge Harry Blackmun was the general counsel at the Mayo Clinic. In that role he acquired a healthy respect for physicians. That background served to bias his interpretation of the Constitution.

"In keeping with his predilection for his former colleagues, he emphasized the rights not of women but of doctors: "’The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.’ The word ‘physician’ appears in Roe v. Wade forty-eight times, the word ‘woman’ forty-four times."

In 1992, Roe v. wade was reaffirmed, but this time using the following argument:

"That decision focussed on the provision of the Fourteenth Amendment which says that no state shall ‘deprive any person of life, liberty, or property, without due process of law.’ The Justices said that a woman’s decision to terminate a pregnancy was within the ‘realm of personal liberty which the government may not enter’."

In a more recent decision four Justices put forth yet another justification:

"....Ruth Bader Ginsburg, joined by three other Justices, offered still another constitutional justification for a woman’s right to choose, under a different part of the Fourteenth Amendment: the equal-protection clause. Undue restrictions on the right to abortion, Ginsburg wrote, violate ‘a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature’."

Lest we leave the impression that manipulation of the Constitution to further the will of segments of the population is a left-wing liberal phenomenon, we should recall the reinvention of the Second Amendment. Jill Lepore provides a description of that process in an essay, We the Parchment, in her book The Story of America.

This is the Second Amendment:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

That’s it. That is all there is.

"Before the scholars had commonly understood the Second Amendment as protecting the right of citizens to form militias—as narrow a right as the protection provided by the Third Amendment against the federal government forcing you to quarter troops in your house."

"As late as 1989, even [Robert] Bork would write that the Second amendment works ‘to guarantee the right of states to form militia, not for individuals to bear arms’."

However, there was a well-organized and determined group that wished to counter that interpretation and turn it into an unlimited right for individuals to possess weapons.

"Beginning early in the 1970s, lawyers employed by the National Rifle Association [NRA], eager to overturn gun-control laws passed in the wake of the assassinations of Martin Luther King Jr. and Robert F. Kennedy, began arguing that the Second Amendment protects the right of individuals to bear arms."

A near continuous wave of articles, speeches, and political pronouncements created a constituency for this interpretation, and it finally had its view entered into law.

"In 2008, the NRA’s argument about the second amendment was made law in The district of Columbia v. Heller, which ruled as unconstitutional a gun-control law passed in DC decades earlier."

As with most written documents, the Constitution means whatever those given the right to interpret it wish it to mean. Does that mean the people are completely at the mercy of nine unelected Justices?

There are times in which personal preferences are overridden by the demands of society. The New Deal decisions are a case in point. Some interpret Chief Justice Robert’s unexpected support of the healthcare mandate as a desire on his part to not "be on the wrong side of history."

The most important way in which the people exercise their will over the meaning of the Constitution is by the decision for whom to vote. Toobin reminds us of this.

"It’s tempting to be outraged by the close correlation between the outcome of Presidential elections and the outcome of cases before the Supreme Court. Aren’t Justices supposed to be independent of politics—isn’t that one reason they have life tenure? Aren’t judges different from politicians? Not really, and that’s nobody’s fault; when it comes to interpreting the majestic generalities of the Constitution, there is no such thing as apolitical decision-making. So, in a time of great polarization between the parties, Democratic and Republican judicial appointees see the world, and the law, in very different ways. It’s true that Justices do surprise and exceptions do happen. But not often."

"On the fortieth anniversary of Roe v. Wade, it is worthwhile to celebrate a landmark of what is, in the truest sense, women’s liberation. But it’s important to remember, too, that it wasn’t the Supreme Court Justices alone who made sure that Roe survived. The judicial texts have evolved from odes to doctors to paeans to liberty and to defenses of equality. But it is the voters and the President they elect who will decide whether abortion rights survive for the next four decades."

In an inefficient, contentious, often ugly, and usually tardy manner, the will of the people does become the determinant in Constitutional interpretations. The poll of the people’s will is the presidential election, so if one has issues that are important, then political activism is required, with turning out to vote as the minimum.

It is difficult to overestimate the importance of political participation. If one advocacy group loses a political argument with another advocacy group, it cannot depend on the Constitution to be there to protect it.

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