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The Cons, the Constitution, and the Courts

Copyright © 2005 by Stephen W. Potts. All rights reserved.

The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2009. Top row (left to right): Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row (left to right): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. (Photo credit: Wikipedia)

In the wild, weird world of our Bent Right–that pandemonium of christofascists, Confederate Republicans, Zell Miller, and assorted other wingnuts–yet another traditional American institution has been nominated as the Great Satan of the month. For the moment it pulls ahead of the “liberal” corporate media and the “Jewish” Hollywood-New York entertainment industry and “America-hating” academe and unions and scientists and secularists and . . . well, the list does go on.

Their diabolus of the day is the court system. Unhappy with California’s Ninth Circuit Court’s past rulings on the “under God” phrase in the Pledge of Allegiance, with the Florida Appeals Court’s recent decisions concerning Terri Schiavo, and with sundry other judicial determinations on issues ranging from gay unions to the display of the Ten Commandments, the religious right and their elected suck-ups have opened a new front in their battle against the law. “Anti-religion” screams James Dobson of Focus on Family. “Anti-family” tolls fellow wingnut Tony Perkins of the Family Research Council. “Unaccountable” chimes in Senate Majority Leader Bill Frist. “They’ll never take me alive,” hollers Tom DeLay.

Bentright fulminations against the courts are of course not new. At least since the progressive tenure of Chief Justice Earl Warren, that commie California Republican ex-governor appointed to the Supreme Court by that America-hating President Eisenhower, cons have pissed and moaned that the courts were out of control, specifically their control. Since the Nixon presidency, the right has campaigned to pack the courts with their kind of folks, those who–they claim–would stick to the “original” interpretation of the Constitution and not legislate progressive social policy from the bench.

Although the majority of federal jurists sitting today were appointed by Nixon, Reagan, and the Bush dynasty–one need only look at today’s Supreme Court for a representative sampling–the pissing and moaning persists louder than ever. Despite all their efforts over the last generation, the judiciary remains stubbornly independent. Indeed, the view that the judicial branch of government should be brought to heel has been echoed from the highest court itself. On a recent roundtable between Tim Russert and Justices Stephen Breyer, Sandra Day O’Connor, and Antonin Scalia, Scalia actually asserted that the courts had to be hauled into line with the bentright views of the congressional leadership and the White House. He said so as a self-proclaimed “originalist.”

This strongly suggests that Scalia cannot distinguish his anus from a hole in the ground, or the Constitution from what he uses to wipe it.

“Originalists” have proved a verbose lot over the last thirty years or so. As any perusal of the relevant library section will show, a substantial proportion of the legal texts published over this period reflect opinions of the American Enterprise Institute and more recently the Cato Institute, of the Borks and Scalias. They have made scads of forceful cases in carefully parsed legalese. They are a mystical group too, who claim to be able to channel the founding fathers and understand exactly what they were thinking when they scripted the experiment in republican democracy embodied in the Constitution. Fundamental to their thesis is that the founders intended the law to function in perpetuity as though we lived in an eternal 1789.

Taking them at their many words, that means the federal government had no business abolishing slavery in 1864 or segregation in 1964. That means the income tax is in fact unconstitutional, as is the expansion of suffrage to include women and eighteen-year-olds. Granted that many of these changes were made through the amendment process that the drafters included in the Constitution, they still do not reflect the values of 1789 and therefore violate the “original intent” advocated by the strict originalists. The expanded executive powers assumed over the last century to regulate trade, the environment, and consumer interests all fall outside the intent of the founders.

So, fortunately, would drug interdiction — particularly the laws against marijuana and hemp cultivation. Since Washington, Jefferson, and several other plantation owners among the founders grew hemp and even printed the Constitution on hemp parchment, such laws have no constitutional provenance under the originalist doctrine–although this writer sought in vain for American Enterprise Institute diatribes or ex officio Scalia proclamations against our loony drug war.

Also fortunately, for those of us who cannot channel the founders, they were a fairly verbose lot themselves and left ample evidence of their original intent. Of special relevance to the current tempest is the collection of essays known as The Federalist Papers. These were penned mostly by the conservative New Yorker Alexander Hamilton and the only somewhat less conservative Virginian James Madison during the debate over the Constitution, with the purpose of convincing the states-rightists among them of the value of approving it.

As conservatives by the standards of their time, these men were suspicious of pure democracy, especially the tyranny of the mob and the majority; as such, they believed deeply that legislatures should ideally be deliberative bodies dominated by calm reason and as far removed as possible from the fluctuating “passions” of the populace and the demagogues who play to them. In Federalist papers number 10, 52, and 55, Madison explicates the ideas that the Constitution limits the potential of certain “factions” to force their will upon the rest, in his view the greatest potential evil in any democratic form of government. Were a single faction to gain control, its interests would destroy the public’s interests and, as Madison phrases it, “anarchy may truly be said to reign.” In the words of a recent commentator on these papers, Madison “observes that there is a form of democratic tyranny that results when a factious majority places its interests above public good and private rights.”

For Madison, the benefit of the Constitution lay in its checks upon demagoguery, as he writes in No. 51, “the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other . . . .” In his view, the surest restraints on the reckless passions of factionalism were the Senate and the Court. Because of their longer terms and, in the original Constitution, indirect election, he viewed senators as less subject to the unseemly passions and less likely to fall under the yoke of a single factions, and thus more likely to seek consensus for the benefit of the public in general. Likewise, the judiciary, because its members held office for life, had to adhere to precedent, the written record of the law, and cool deliberation, and not be subject to the tyranny of the passion of the moment. The latter notion-of judicial review-was rigorously endorsed by the man who could be called the founding father of the Supreme Court, Chief Justice John Marshall, in his historic decision Marbury vs. Madison. In juxtaposing the powers of the court and the legislature, he asked, “[t]o what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”

In practice, we all know it has not worked out quite this way, and that the Senate and the Court have often bent to the popular will or the winds of change, sometimes for better, sometimes for worse. Nevertheless, the noise we are now hearing from the likes of Dobson, DeLay, and Scalia bespeaks precisely the sort of factionalist passion and mob tyranny that the original composers of the Constitution, and especially the conservatives among them, intended to derail. After dunning us with their purported adherence to the original intent of the Constitution, it does no good now to wail that the Democratic minority in the Senate is keeping the Republican majority from foisting Bush’s rejects on the federal judiciary. That, according to the authors of The Federalist, is constitutionally essential to the Senate’s role. It does no good to weep, as do Frist and DeLay, that the courts keep vetoing the will of the legislature. When the courts believe that legislation flies in the face of precedent or public welfare, they are just doing their job.

All this wingnut whining just confirms what most of us knew long ago: The gang who call themselves conservatives and constitutional originalists are nothing of the sort. They are simply cons.


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