Sunday, June 21, 2015

When the Gods of The American Olympus Speak: The Uncertainty of Rights

"We hold these truths to be self-evident."

Do we? Do you?

The enterprise of our liberty, our independence, as a people, from Crown and Parliament, depended on the earnestness of those who proclaimed that they held those views. If they were not, as free, moral, agents convinced that they and their fellows were possessed of a body of rights that they could not even agree to surrender (inalienable), then their pretense of offense at the tyranny of the English Crown and Parliament was just that, pretense on pretense. Rather than conclude against evidence that the Declaration of Independence was an insincere statement posturing about aspirations, I take Jefferson and the signers of it at their word.

Who we are, as a People, can be stated in many ways. A law professor with whom I occasionally debated back when newsgroups were a key way to communicate on the Internet often referred to America as the Protestant Empire; that phrase succinctly stated the exclusivity of the Protestant view shared among the principal founders, and among the States, throughout much of our Nation's history. Of course, others use the term "melting pot" and identify the Nation as, essentially, mongrels, the world's "mutts" if you will.

Certainly there will be great disagreement in such categorizations. But the Declaration speaks for me. We are a People convinced that each of us, at the hand of Nature and Nature's God, are endowed with rights that belong to us in time before there is even a political body such as this Nation to get into the business of "granting" such rights. In other words, our right to live, it does not exist because our particular State and the United States have told us we may live. Likewise our rights to liberty and to pursue happiness.

Still, the Declaration, while it gives us an identity as a People, does not state a set of organizational principles by which a common enterprise such as a political community can be stood up and can be maintained.

For those principles, we have looked to Constitutions, first, the Constitutions of the States (as they preceded in time and right the general government) and second, the Constitution of the United States. These documents frame our governments. They confirm powers of the government (or in the case of the federal government, they confer those powers on the general government). They acknowledge the existence of, and inviolability of, the rights with which the Declaration says we are each endowed.

Throughout the entire course of our constitutional history, a struggle has existed over the question of how to govern the whole body of us. Lincoln spoke to this question in his First Inaugural Address. Remember, to render this address on the assumption of his duties, Lincoln had first to sneak into Washington, DC, coming from Illinois, by rail, through the border State of Maryland, which never seceded but which had preferred his opponent, John Breckenridge, a Southern Democrat, in the general election. So, in his inaugural address, with threats and moves toward secession spoken openly, he made his appeal for Union.

In that appeal, he explained how the conflicting views created issues of how the Nation could be governed. In his view, secession was the minority opinion. And, as he viewed it so, he explained that it was not, by any sense of political power or duty, entitled to a permanent circumstance of governing over the majority:
Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Ultimately, what we have is not a finely tuned machine, with exceeding close, "German engineering" tolerances. Instead, we have republican (little "R") government by which, in fact, our law and policy is made by representatives of the people, not the people themselves. Moreover, that republican or representative government does govern by principles of majority rule. With respect to the choices to made in laws to enact, laws to repeal, and the like, the essential governing principles are two:

First, the majority is free to make laws, or to repeal laws, touching upon the host of human experience and interactions, so far as, and to the extent that, the majority chooses to do so.

They can adopt a law requiring that leaves be bagged and placed at the curb. They can pass a law requiring that cars undergo an annual safety inspection. The only requirement preceding a legitimate exercise of this general right of legislative majorities is that there be an underlying rationale for their law that survives a minimal kind of scrutiny often called the rational basis test. So, for the leaf bagging requirement, a county commission might pass just such an ordinance after hearing testimony from the rainwater runoff commission that leaves piled in street-side gutters result in clogged rainwater drains.

Second, the majority is barred from making laws in selected categories.

The majority cannot make laws that target certain kinds of minority groups for disfavored treatment (so, for example, they majority cannot require that all Asians register with the police department, or that all Norwegians register with the Farm Bureau). Such laws violate the principle of equal protection of the law. The majority could, for example, pass a law requiring EVERYONE to undertake some ministerial act, for example, attend school. In fact, such laws are widespread, rampant, familiar.

The majority is also barred from making laws that burden the exercise of certain essential, political and civil rights, rights that we often associate with the Bill of Rights, such as the right to freedom of speech, the right to free exercise of religion, the right to keep and bear arms. It doesn't matter that the Congress or your State assembly pass a law that restricts every one's right to gun ownership -- as opposed to a law prohibiting only Caucasian females from owning -- it is the underlying, affected right that is of particular concern and that is particularly prized and protected.

Given that background, and as we are, or may be, on the cusp of a stunning decision of the Supreme Court on a question of law that has always been, until in recent time, readily recognized as belonging to the sphere of States' powers rather than the federal government's powers, I think it of great importance to see how a nation is being held hostage to the opinion of, essentially, a single man.

The American Olympus

Let's start with this atmospheric:

Here are the remains of the Parthenon, the Temple of Athena, the Greek Goddess of Wisdom. By legend she sprang full grown from the head of Zeus. Nearly two and a half millenia later, the Athenian devotion to her wisdom is evident in the structure.

Yes, damaged. Crumbling. But who isn't after a couple millenia. Now, compare that remarkable temple with this one, the United States Supreme Court, which was constructed in the manner it was, for the purpose of creating a sense of it as a judicial Olympus:

Comparing the two leaves you the impression that the only real difference is that the Supreme Court required more space for staff than did Athena.

And, it isn't that the building resembles a Greek temple, accidentally. Cass Gilbert, architect of the structure, "literally conceived of [it] as the temple of justice...." "Finished and occupied in 1935, the Supreme Court is meant to resemble a great marble temple."

Literally, the face of the Court to the Nation is that the Court is our American Olympus. With the passage of time, and the accretions of power within our constitutional framework of government, the Court's decisions are often difficult to perceive differently than the rolling of thunder and bolts of lighting from legendary Olympus.

If you haven't listened to the oral argument recently had before the Supreme Court on the cases involving the claimed constitutional right to "marriage equality," the legal principles and language are not so arcane, so full of legal jargon, as to be beyond comprehension. You could, if you wished, listen to those arguments, here (part one) and here (part two). It's a good bit more work to wade through the briefs and the many additional filings by interest groups supporting and opposing the claimed constitutional right to marriage equality. But were you to do so, you would immediate recognize that there is one "pretty girl" in the "gym" of the Supreme Court's argument, only one justice for whose vote every legal "suitor" pines and yearns: Justice Anthony Kennedy.

Kennedy, just like moderates preceding him, is often targeted by the authors of briefs and the presenters of arguments. Not targeted in a bad sense, but targeted in the sense of being the one to be convinced, to be wooed in words. And the media reports recognize that this case likely depends on Kennedy's vote. Here are some examples of such media reports:
The decision is likely to come down to the court's key swing voter, Justice Anthony Kennedy, or Justice John Roberts, who once sided with the liberals in the case that upheld Obamacare.
He said the more conservative justices - Antonin Scalia, Clarence Thomas and Samuel Alito - are likely to rule against gay marriage. And the more liberal justices - Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - are expected to support it. Feldman said Justice Anthony Kennedy and potentially Chief Justice John Roberts could be the deciding votes.
The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights. In three key decisions since 1996, Kennedy has broadened the court's view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.
All reports from the argument support the likely scenario that Justices Breyer, Ginsburg, Sotomayor and Kagan will vote to overturn the lower court decisions in the cases at the Court on the ground that the Constitution guarantees the right to marriage equality, and that Justices Roberts, Scalia, Thomas, and Alito will vote to affirm the decisions now pending before the Court. (Of course, we are supposed to reason that even though Justices Ginsburg and Kagan have officiated at same-sex marriages, their decisions on the legal question will proceed from constitutional grounds rather than personally biases.)

That leaves for prognosticators the all important question: how will Kennedy vote? 

Will Kennedy join the progressives on the Court and stunningly overturn the understood two hundred years plus interpretation of the Constitution and one hundred forty years reading of the Fourteenth Amendment, finding a right to marriage equality that guarantees that members of the same sex have same right to marriage as was previously recognized only for opposite sex couples? Or, will Kennedy join with Roberts, Scalia, Thomas and Alito, and hew the traditional lines of the Constitution?

No one, except the Justices and their staff members involved, has any idea for sure now. But shortly we will all know. And then, no matter how the case turns the howling will ensue. If Kennedy rejects marriage equality in this go-round, even if he leaves open the pathway toward its eventual recognition, the supporters of marriage equality will undoubtedly decry the injustice that they perceive in such a construction of the Constitution. If Kennedy joins the progressive justices on the Court and finds a constitutional right to same sex marriage, then the hue and cry from supporters of traditional marriage will, likewise, erupt.

So now, I am again thinking of the President I hate to love, the President I love to hate, Abraham Lincoln. And I'm thinking about the Nation that he "inherited" as President. Then, we were a nation fracturing over slavery, and reeling from a Supreme Court decision that rejected the power of Congress to restrict slavery in federal territories, a decision that denied the constitutional person hood of Africans. Then, his First Inaugural Address, he spoke to near half a Nation that hung precipitously on the cusp of secession, and to over half a Nation that had seemed content to leave slavery where it found it, maintain Free Soil principles where they established them, and work toward political solutions when possible. His address served as his appeal to heart and mind against the propriety of secession, and thus against the principle, as he would see it, of minority rule.

Today, his words would be directed to those who advocate marriage equality. While same-sex marriage has become legal in the majority of our States, the bulk of those changes were by reason of federal court decisions declaring State laws or State constitutional provisions restricting marriage to opposite sex couples to be unconstitutional as violations of the Fourteenth Amendment. In the absence of those judicial rulings, the vast majority of States prohibited anything other than opposite sex marriage. Lincoln, then and now, would urge that the better, more secure guarantee of the right for which they are contending through the Courts.

Remember that the Nation learned this lesson through a Civil War. An ill construction given to the Constitution by the Supreme Court, the election of a Radical Republican, and the feared loss of sovereignty in southern States, together with the moral question of slavery, precipitated that war. And that war created the conditions by which three amendments -- prohibiting slavery, guaranteeing citizenship to the newly freed slaves, and providing a right to vote -- could be added to the Constitution. And while the work of perfecting those repairs is not done, it has not been left mostly undone.

And that's why I keep explaining in this blog, and elsewhere. I know many stridently oppose redefining marriage to include same sex marriage. I know some fervently yearn for recognition of marriage equality under the Constitution. But neither group can rest securely in the outcome for which they hope when the outcome is granted by the oligarchs of the Supreme Court. The securest means of guaranteeing a right or preventing a wrong, in our constitutional society, is to AMEND the Constitution. Nothing else is a substitute for doing so. Otherwise, we will continue to wake up in Kennedy's America, or another Justice's America, and not our own.