Archive: Opinions

Even in the midst of the heatwave doldrums of this summer, it seems there are plenty of items to extemporize on, both local and national. I had originally planned on looking at the headline 'City To Attempt New Tax Credit Program'. In otherwords, giving a 'gift' to Ithaca's treasury, thus eliminating another word from our modern lexicon, 'Tax'. What a concept.

I may still confront that idea in near future (after all, the IRS is certainly on that like white on paper), but the retirement of Anthony Kennedy from the Supreme Court of the US affords a great opportunity to expand a bit on what we might call Constitution 101. And since the media is apparently obfuscating some issues as well as misrepresenting an issue or two due to ignorance, I think a couple of 'thoughts' based on history, both recent and not-so recent, would help readers to see what the Court is, as well as 'is not', what it can and cannot do, and its relationship with Congress and the Chief Executive, the other two branches of our government (which a majority of high school students could not answer correctly about how many branches the US government has).

In the Federalist papers, Alexander Hamilton considered the Judiciary as the 'least dangerous' of the three branches, in light of how 'the people' might otherwise dangerously influence the legislature and executive branches, but a Supreme Court could be somewhat immune from the 'mob rule' by being appointed for life. The Supreme Court was originally set up to oversee state courts (which were notorious for going their own way with wildly divergent views), set up a Federal court system and handle cases of 'fundamental law'. No power was originally foreseen or believed to be necessary over the other two branches' actions. Indirect election of the Executive (Electoral College) and appointed senators (by state legislatures) would shortcut unruly mob sentiments (which were abhorred by the Constitutional Convention members) and the Supreme Court justices would be appointed for life assuming they 'behaved'. This ran into immediate problems (among other issues) as soon as 1798, and especially in 1801.

John Adams, miffed at being rejected for a second term (he was an arrogant sort, and his Federalist credentials were defeated by the republican, note small 'r', beliefs of Thomas Jefferson, as well as the imperialist and nefarious intentions of Aaron Burr), appointed a bevy of judges just prior to Jefferson's inauguration, thus earning the title of 'midnight judges' (the 19th century was good at catch phrases, too).

The real argument over the early years had been a strong 'federal' (read: central) government vs. a state centered government (the Articles of Confederation had proven a failure of this idea). This division of opinion was fostered by ideas of 'states' rights, people-driven 'republican' ideals and the concept of 'rule of law'. Essentially, 'republican' ideals won out in compromise fashion, and were espoused later in history by the popular election of presidents, a strengthened House of Representatives, various amendments to the original Constitution, but also threatened to rip the new nation asunder in familiar ways: New England threatened secession over the declaration of war on Great Britain in 1812, states going their own way with the concept of 'nullification', such as South Carolina over tariffs in 1830, and other issues as slavery became the dominant constitutional issue issue from 1820 to its fruition in 1860-65, which nullified nullification until the 20th century).

Antipathy to a Supreme Court's powers found their first 'victim' in the impeachment of Samuel Chase, a Supreme Court justice, in 1804 due to political feelings that he and the Court were being 'high handed' in its actions, exceeding their interpretation of its 'writ' in the stated and unstated aims of the Constitution, as originally written (the originalist arguments had begun long before Antonin Scalia).

'Marbury v. Madison' was a complicated case, as one of the afore-mentioned 'midnight judges' sued Secretary of State Madison over the refusal to allow Justice Marbury to take his federal judicial seat. John Marshall was Chief Justice, and his great contribution to the Court was to find concurrence and mutual assent in Court decisions. Essentially, Marshal's court ruled that the Court had the right to intervene in such cases where a conflict existed between two constitutional rights, as well as conflicts between branches of government, as defined by the Court's reading of the Constitution. Although Marbury was seen as a 'narrow' ruling', it had implications for the next two hundred years, to our present day. It recognized the Constitution as a legal document, more than just a political document.

Marshall's genius was his assumption, based on this concept, that the Constitution had exemplified a rule of law, not just political ideals. Marshall wrote that it was (quote)'emphatically the province and duty of the judicial department to say what the law is', and suggesting that Supreme Court justices had a special authority to interpret the Constitution that other branches did not posses. (Empire of Liberty, Gordon S. Wood, Oxford Press, 2009, pp 448-9). Thus, setting precedent (which law rests upon), that earned the eternal enmity of Thomas Jefferson, Andrew Jackson, Theodore Roosevelt, Franklin Roosevelt, and even Richard Nixon.

So, why am I going to such lengths in this little diatribe? Here's why: All we are hearing is 'Will Trump's nominee to replace Anthony Kennedy uphold Roe v. Wade?' As you know, Roe, in 1973, essentially upheld a woman's right to an abortion based upon equal protection rights and a right to privacy. (I have not read the decision, and probably wouldn't understand the legal wranglings; I'm pretty much a normal, non-lawyer-esque citizen, but know that, intrinsically, it is the law of the land, challenged almost every year, by judicial decisions, affirmed and upheld over a myriad of cases).

Now, there are a number of cases that go to the heart of American jurisprudence (witness the plethora of 5-4 decisions handed down in the last two weeks of this current session regarding free speech, freedom of association, freedom of religion) that come before the court, and go forth in trying to define current ideas of the American way, and rule of law. But it must be pointed out that the Court decides on matters of law, not morality or ethics outside of written and presumed law. The focus and concentration on one 'limited' ruling and its elevation to the oxygen-thin heights in Senate conference rooms appears to be slightly ignorant, even insane, as well as unfair to the people, and here's why.

In reference to the Senate hearings to come and a nominee's position on Roe, any direct question on a judge's opinion on specific points of the law will be answered thus: "I cannot comment on any case which is liable to come before me as a member of the Court." Senators know this from numerous past occasions. In otherwords, try as they might, Susan Collins, Diane Feinstein and others (both parties, of course) may not ask that question, although they will try (as only lawyers can) to phrase it in a million ways to ferret out an 'answer' to the question which millions, erroneously, think is the only relevant question before the Court.

They, of course, can look at the 'paper trail' which can give indications on how the judge has decided on various state-level restrictions on the right of abortion, but asking outright is verboten. Even Neil Gorsuch, the newest member of the Nine (Note: the Constitution does not specify the number of judges on the Supreme Court, and nine is essentially a somewhat recent invention).told the press and Congress in 2017 that if the President asked the Roe question he would have 'walked out of the interview'. Trump will do no such thing (we hope), and Senators should adhere to that common sense notion. Don't count on it, with the media screaming the inappropriate question from every megaphone possible.

By the way, Anthony Kennedy earned the jeers of abortion rights advocates in a Colorado case (Hill v. Colorado) where the law stated it was a misdemeanor for anyone within 100 feet of a health care facility to knowingly approach another person 'within 8 feet' without consent, to engage in 'oral protest, education or counseling'. Although the law was castigated by the Court as 'too broad', it upheld the statute by a 6-3 margin, but Kennedy dissented: (Quote) 'For the first time, the Court approves a law which bars a private citizen from passing a message in a peaceful manner, and on a profound moral issue, to a fellow citizen on a public sidewalk, so committed is the Court to its course (a veiled reference to Roe) that it denies these protesters, in the face of what they consider to be one of life's greatest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law.' Sounds like he may have been against Roe had he been on the Court in 1973, but in any case exemplifies the conflict of 'rights' which the Court is specifically empowered to rule on.

This case was addressing a state law that was deemed within the strictures of the Constitution as written and defined, but Kennedy saw it as violating the First Amendment, which, to state it simply, has been determined to be the Court's domain: is a state or federal law, within the Constitution, legal and binding? And, just as importantly, when two rights conflict, which shall dominate and take precedence? Does free speech (1st) conflict with a woman's right to choose and privacy (14th)? Does freedom of association (1st) conflict with the right to assemble and petition (also 1st)? This has been the province and writ of the Court as determined by Marbury and a host of decisions since 1789.

The Court does not determine morality, ethics or mores, nor social standards, any more than it writes laws. The Court determines, under the rule of law and precedent, whether a law as passed by state or federal legislatures, whether that law hews and adheres to Constitutional muster. It has other duties, of course, but it seems that some people, ignorant of this basic Constitutional principle, are only concerned with a misconceived notion that the Court determines a country's moral compass. It may, indirectly (witness school prayer and Brown v. Board of Education), but it does so by looking at a law passed and whether the law conforms to our Gold Standard of rights, the Constitution, and its attendant Bill of Rights and state approved amendments. We, the people, are the ultimate arbiters of the 'moral compass' and ethics, as determined by our elected representatives who write and pass these laws.

Our morals and principles are determined at the ballot box as we elect these men and women, and how these officials represent us when they meet and determine laws. Each state has a right to pass laws not specifically allocated to Congress (10th Amendment) and the majority will have its say, hopefully with respect for the minority opinion, and each states' majority will determine exactly how it will deal with abortion rights and restrictions. The 'patchwork' of laws as they differ from state to state is a constitutional provision and does create problems, such as divorce and property laws, owning firearms, etc., but this was the compromise that had to be afforded by the country's founders.

When people demand unanswerable questions of Supreme Court justices, it could be argued that maybe Congress should just pass a national law on abortion. Could they, assuming they had the backbone sadly lacking in our national legislature on so many questions, deferring to the media,even the executive? Chances are that a national abortion law (no matter 'for or 'against') no matter how carefully crafted, run afoul of the 10th Amendment which allows states the right to pass laws which are not specifically allotted to Congress. If it were written and composed as a constitutional amendment, it would require 2/3 affirmation by the states, a fate which has relegated the Equal Rights Amendment to failure since the 80's. So, it is up to the states,and restrictions, while often onerous, cannot be overruled by popular opinion; only laws can and should be overwritten, overruled, rewritten, by 'the people' in their legislative chambers. where the power rightly belongs and resides, then ruled upon by the Courts.

The problem with this thinking, of course, is the assumption that people express their views on election day. We know how abysmal is the American record in voting (single digit turnout is frequently the norm) and even Presidential elections frequently struggle in some states (see Dan Veaner's editorial last week in the Lansing Star) so we expect the media and the Courts to do our bidding, when in reality this thinking is an abdication of our responsibilities. Australia may have the right idea... make voting mandatory (but, au contraire, so does Communist Cuba...).

Given our dismal participation in elections, is it any wonder we misunderstand the role of the Court as interpreters, and the legislature's as lawmakers, and then tear ourselves to shreds in the so-called popular media over an issue (Roe) which is, on a federal level, established precedent? It is established law: and it is a state's right to determine how to carry out that established law, and allow the voters to determine if that is their wish.

The cry of 'judicial activism' seems to emanate from those who would otherwise ignore their responsibility to express their view in the election booth, where it belongs. We have a right to elect reps (from village boards all the way to Congress and the White House) and we have the right to expect the men and women who are appointed to the highest court to uphold the established law, and rule on our inalienable rights as delineated in the Constitution and precedent. Popular opinion cannot (and must not) rule a dispassionate and honest court which understands that our Constitution is a legal document, not a political document, not changeable by the whim of a crowd, essentially mob rule of passion, and often media misguidance.

Allowing so-called 'popular opinion' to rule the Court, instead of the legislative and executive branches, allows the media and a loud minority to rule and out-shout 'the people', and this way is mob rule as Madison, Jay, Hamilton, Franklin et al.

Let's sober up, if we can, learn the simple facts surrounding our Constitution and a bit of history. I mourn the passing of Antonin Scalia ( a real originalist and Constitutionalist), as well as the retirement of Anthony Kennedy (a 1st Amendment champion and hero). And, too, I mourn the slow demise of an educated and informed public. Madison, in the Federalist papers, stated that an informed public would temper the excesses of a mob, and this educated public could still hold dear the sacred and valued document which defines us a a 'nation of laws', with all of its flaws. Now the question to all might be: 'Can we survive another two hundred years without a revival of understanding and education on some basic tenets of republican, constitutional government?'

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