By Mark David Blum, Esq.
With the announced retirement of Justice David Souter, America is about to get a new face on the Supreme Court and a new voice to be heard on how we, as a nation, will progress. Even before there has been a nominee, Republicans are spreading fear and hatred as they resurrect their favorite judicial buzzwords. Again we hear them clamoring over “activist” judges, strict constructionists, and how judges should have no empathy for the persons standing in front of them. America’s Supreme Court is being driven by Republicans to have a justice who has no personality, no opinion on controversial subjects, and is not allowed to fit any identifiable class of persons.
A justice should not be selected because of race or gender or even sexual orientation. We deserve the best and the brightest who is beholden to nothing but the law and the Constitution.
In response to the Republican spin machine, I conclude that the “activist judge” is the one who rules against you. The Constitution of the United States gave way long ago to the Constitution of the Judiciary. Properly seen, a true activist judge is the one who goes against judge made law and precedent and instead, follows the Constitution.
Our current Supreme Court has been anything but strictly adherent to the Founders’ intentions or to the strict letter of the Constitution. The loudest voices for judicial temperament and strict interpretation have the dirtiest hands on the subject of strictly reading and applying only the text of the actual document.
In the eleven years that elapsed between the signing of the Declaration of Independence in 1776 and the drafting of the Constitution in 1787, several basic theories that joined us as a nation changed significantly. To this day, the overwhelming majority of Americans still operate under the discarded theories and ignored the change. That fundamental misunderstanding will be at the core of every debate we are about to witness.
Recall Thomas Jefferson’s penned brilliance. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
“Inalienable rights” are, by definition, rights that cannot be transferred or repudiated. You are stuck with them. “Life” is primary among those rights deemed incapable of surrender. To this day, this term is the magic language upon which the political right seizes to make their case against abortion, euthanasia, suicide, and drug use. They have attached themselves to what they believe is an inalienable ‘Right to Life’.
Yet, the signers of the Constitution recognized no such inalienable right. In the Constitution, the word “life” does not even receive a mention until the Fifth Amendment where the drafters said only that life cannot be taken by the government “without due process of law”; whatever that means. Our drafters changed our inalienable right to life to a conditional right to life. If it were inalienable, then no State could enforce a death penalty. Those who argue there is an inalienable right to life have no constitutional premise to their argument. A strict constructionist would never agree there is a “right to life”.
So too with property. The famous Eminent Domain decision, though barfed upon by the conservatives on and off the Court, was in every sense a strict read and application of the Constitution. The Fifth Amendment to the Constitution states clearly that, “nor shall private property be taken for public use, without just compensation”. So long as the State makes just compensation, it can take what it wants. Note there is no specific Constitutional limitation ANYWHERE that says, “no State shall take private property for public use”. There is no absolute right to property ownership to the exclusion of the State. Try refusing to pay property taxes. But the political right screamed that there is some unknown unstated inalienable right to property ownership to the exclusion of the State. Yet it was the Court’s liberal wing that held fast to the original text of the founder’s writings.
Hugh Downs, former host of the Today Show, said on March 31, 1997 that, “there is only one political party in the United States. Half of them are Republicans and half of them are Democrats. The Libertarians have all the good ideas.”
A Libertarian would say that the States and Federal governments should make haste in passing legislation and even a Constitutional Amendment that says, “[N]o State may take private property nor enter thereupon absent consent of the rightful owner.” Would you support such a change in American policy? All your life, I bet you believed that was already the standard. Justice O’Conner and the rest of the Court showed how there are vast gaps in our understanding of the Constitution. I concur that life should be an inalienable right. So too with a right to privacy. The question should never be, “do you have anything to hide?” Instead it should be, “why is it any of the business of government?”
Justice Scalia and the Conservatives turned the principle of Strict Construction on its head. Theirs has become a warped political perspective that begins with the principle that only those rights set forth in the constitution belong to the People and if not so mentioned, they do not exist.
Such an analysis is contrary to every stated intention by every Founder. They were not afraid of the People. Theirs was a fear of tyrannical government. Our founding documents were written specifically to diffuse and limit power of government; not the People. The constitution was a document of limitation and those powers enumerated therein are specific and finite. For the activist judges in the conservative wing of the current Court, all these founding principles do not apply and all power in the nation comes from government to the People. Their theory and perspective is flatly wrong. More importantly, it is dangerous.
Remember the Declaration of Independence’s famous line, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Our Founders’ radical change to the then current political theory was the recognition that “power for governing” arises from below; from the People. Authority does not come from the ‘State’ but rather from the governed. This did not change when the Constitution was written. That theory was codified AS the Constitution.
We can see how the application of misguided constitutional analysis can severely disable rights and protections. California and nine other States legalized for its citizens the use of marijuana for treatment of pain and suffering. Federal law makes the possession, distribution, and sale of marijuana a felony. Setting aside the “drug war” argument: The Supreme Court stripped away the last vestiges of ‘States Rights’ by applying their misguided theory of power distribution and then used a strict read of the constitution to overrule California’s law.
It is the original compact between all the States and affirmed nearly every time the question came before the Supreme Court, that the Federal Constitution creates a set of minimum rights and protections available to every American. This was later codified in the 14th Amendment. There are absolutely NO prohibitions found anywhere in the federal constitution that say a State cannot give its citizens MORE rights and freedoms than those guaranteed by the Federal constitution. Meaning, that the federal constitution sets the floor below which no State can go but above which every State is welcome to rise.
In one of the most backwards reasoned and appalling decisions, the Supreme Court relied upon one of the narrow enumerated powers of Congress and applied the principles of the Supremacy Clause and said Federal Law trumps State Law. The conservative majority started backwards and assumed that power started at the federal level and trickled downward. They rationalized that since Congress had not surrendered control over marijuana, that Congress and not California had retained the power to decide whether Californians can possess marijuana.
“Privacy” is the underlying question in several major constitutional theories, including Roe v. Wade. Republicans and conservatives claim the Constitution does not contain any specific right of privacy. This is the alleged “strict constructionist” theory; same being “if ain’t written, it ain’t there”.
The conservatives and Republicans are ballyhooing in the Senate and pundits are spitting all over the microphones about the role of the Supreme Court. Over and over, the right wing uses the word “limited” in reference to the Court’s power. Words such as “rule of law” and “judicial activism”, are among the jingoistic terms thrown around as a warning from the Legislative Branch that Judges are very limited in their roles on the Court.
How very wrong “they” are. A fundamental element of many judicial decisions is the exercise of discretion. There comes at times a choice a Court may follow; it may go right or left at a legal junction. This is the point where politics, policy, personality quirks and paradigms, and the persuasive power of colleagues and voting blocks come into play.
The law is not a machine. Yes, we strive every day for ‘reason’ in the law; that it should be ‘rational’. Juries are told to be “dispassionate”. Decisions are routinely “dry”. We focus so much more on process over substance on the theory that if the process be fair, the results will be “just”. A Judge is not a machine. Neither is the law. It cannot be that disconnected from the People it serves that all humanity is removed from it. The Legislative and Executive Branches of our government have worked hard in removing judicial discretion in every aspect of the process because doing so gets them elected. Look no further than the Sentencing Guidelines or the massive expansion of the Federal Judiciary into conventional criminal law for proof.
Though the role of the Court in our government is limited, its Power is absolute. Though Judges are required to follow the law, they are moreso obligated to follow the Constitution. Where there will be no answers and where absolute discretion and politics come into play will be when a law or government action comes into conflict with the Constitution. Reasoning and a line of cases will only get you so far. Absolute slavish adherence to precedent will result in another Dredd Scott. Following a Unitary paradigm will result in another decision that expands the Commerce Clause as superior to State’s Rights or another Korematsu. Another Strict Constructionist on the Court will result in another Kelo.
Finally, as a Justice of the Court and having no bounds to their decision making other than the Constitution itself, our Courts could continue the legacy of another Brown, Miranda, and yes, even Roe. America needs leaders; men and women with hearts and soul who when they assume positions of great political trust, will work every minute on the job in advancing the rights and freedoms of every citizen. Every minor nuance which reduces liberty for the worst of us, at the same time reduces that same liberty for the most honorable among us.
The new age ‘strict constructionist’ theory is a false prophet and in fact is NOT a strict construction of the Constitution.
From the moment James Madison put his quill to hemp and penned the most famous words in our history, “We the People”, ours became a nation “conceived in liberty” and dedicated to equal opportunity. ‘Liberty’ is the fire that gives birth to equality, privacy, and the entire Bill of Rights. It is the very primordial soup from which evolved Mr. Madison’s ideals about liberty being the ultimate right to left alone by government.
Thereafter and until the last signature was affixed to the Constitution, it was understood by all present that power in these United States flowed uphill. Herein was the unique beauty of the American experiment. Ours was a political construct never before conceived or since replicated.
All power, rights – inalienable and otherwise – belonged to and start with the individual. From there, individuals gathered and delegated powers and surrendered parts of their liberties and freedom for the common good such as police, sewers, or education. They formed villages, cities, and States.
In the United States Constitution, that flow is recognized and, in fact, the Constitutional authors made sure that the absolute last word on the subject was indeed, the absolute last word on the subject. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Every sentence of the Constitution speaks of privacy and liberty. Limitations on the powers of Legislature to make laws, limits on the Executive to enforce laws and engage in police actions, and that no matter what, there are some places that the government can never go. Nowhere in the history of the Constitution or our history or heritage, was it ever considered or conceived that “all those rights and powers not expressly prohibited to the Executive or Legislature are theirs to use.” Even the great Appeaser, Benjamin Franklin, would be appalled at our return to that form of tyranny by the Executive.
Every right or liberty not expressly delegated away to the States and the Federal Government belongs to us, the People. Abortion is not in the constitution and thus there can be no prohibition against it absent consent of each individual person. “Privacy” is not in the constitution and thus there can be no invasion of privacy at all absent an express delegation of that right to the contrary.
Millions of Americans, including me, have lost a lot of confidence in the integrity of the Federal Courts. This is not because of the people involved. I have never met a more honorable group of hard working individuals than are the Federal Judges and Court employees. In my heart, I know each and every one of them is working toward goals they believe are fully compliant with their oath of office
It is the system itself that has so cost our trust. The new political paradigms clash hard with basic beliefs instilled in every American at birth. I believe the Federal Judiciary at all levels has been packed with former prosecutors, government lawyers, and corporate lawyers; of both parties. These are people who have been raised and nursed in the system, see it as the absolute end to all social problems, and defend it to the end. They should.
At the same time, there is a common mindset that has infected the entire Judiciary. It is an institutional disdain for plaintiffs in civil cases, defendants in criminal cases, the lawyers who represent them, and the judges who are “lenient” toward them. The problem is that the rules of procedure, the precedent of the Supreme Court, and the Judiciary’s surrender to legislative overreaching have all stacked the deck against the common citizen. The system is fair; but most cannot afford it and even if they can gain access, the playing field is not always level, and there is a built in hostility. Where Courts should be working feverishly to throw open their doors, instead at every possible juncture, one after another, is being closed in the face of the People. More and more they are losing access to their only avenue for help.
So let the discussion commence. Much ado is to be made over the theory of activist judges versus strict construction.
For me, strict construction should not be a factor. Asking 21st century Americans to live under rules crafted by the hands and hearts of 18th century philosophers is akin to asking a grown man to wear the clothes he wore as a child. Society changes. Thinking changes. So too do politics, economies, and science. We cannot today be held to centuries old thinking and dogma. Our constitution was written to be a living document subject to changing theories and attitudes. We have to accept that. Failure to do so would bind us in slavery to our faults and mistakes and block our growth and maturation as a People and as human beings.