Thursday, October 11, 2012

Constructing the Constitution

The strict constructionists find excuses to reverse the social contract of the last 220 years, by saying “Well, it might be nice, but it is not in the Constitution.” That philosophy not only might give us the loss of any federal help on the rights to clean air, clean water, safe food, and safe working conditions … all of which, please recognize, are already targeted by the Teaparty. The particular decision on Obamacare surprised observers in several respects. After the constructionists were impressed by the silly broccoli metaphor during oral argument, the betting odds turned against a decision allowing the program. The decision for it was a bit of a surprise, but not as surprising as its justification – Roberts' decision allowed the program, but built in an argument to weaken a rather old precedent for federal use of the commerce clause.

Not long before, the 2010 decision on Citizens' United expanded the scope of corporations. This becomes more alarming when you consider that the newer rights and entitlements (220 years of social contract) were, often, necessitated by the size and scope and social heedlessness of the corporations that employ everyone – Today's economic and material status quo stands in strong contrast to the era of the Founding Fathers when 80% of the population farmed.

There is one Constitution of 7 Articles and 27 amendments, but that is not the whole of our “constitution”. There are laws and interpretations and the principle of stare decisis, which says, “no arbitrary changes from the past.” It seems to me that modern Supreme Court justices follow stare decisis most of the time, because there is no problem; but any of them are willing to overturn precedents. In their respective confirmation hearings, Sotomayor and Kagan each argued convincingly that “judicial activism” is simply not a useful concept.

The record shows that, yes, for a couple of decades after WW II, the liberal issues, supported by liberal justices, showed more apparent activism, but for the last couple of decades, it has been the conservative issues and justices who overturn more decisions. So, “being active” is not the criterion for the folks who still object to judicial activism.

Decisions are built not only on previous law, but also on understandings of science and philosophy that may go on for pages in a crucial decision. So the Constitution includes the original text with the Bill of Rights, later amendments with short changes, and important decisions, some of them with explanations. The philosophy of the Founders is taken into special account – the Declaration of Independence is a second document that is often taken as being important for widening the jurisdiction of the Constitution, to include a larger set of hopes and promises... and more federal power. The Constitution is an important anchor, but it is just a starting place for what we believe and what we follow.

I was surprised when I first heard a discussion of the United Kingdom being a "constitutional monarchy". This seems to be an useful and meaningful description, in spite of the fact that that country has no written constitution. It does have an on-going, consistent process, and they do have a very similar, resulting, rule of law that "governs" the government. When courts rule on the Constitution, more history is implicated than merely the words of the Constitution.

In the Dred Scott case in 1857, Justice Taney hoped to end the long-festering disputes about slavery. The idea of “all men being created equal” bumped up against a contradiction, in slavery. Of course, that "equal" phrase was in the Declaration, not the Constitution... Should it matter? Lincoln's Gettysburg Address pointed back (“four scores and seven years”) to the signing of the Declaration, but his argument helped to create that modern opinion that the Declaration should matter. The issue in Dred Scott was, Did a Northerner have to return a slave?

Taney wrote an opinion that decided “Yes”, based on revised "fact" – He concluded that those African American slaves were not to be considered human beings. So they had no rights. This left the South with their preferred version of laws, and left many in the North outraged. I wonder if the Civil War would have arrived even sooner if that decision had fallen the opposite way. On one side or the other, many laws would need to be changed. The Court took the course of establishing a particular “fact” that made it natural to review, to declare (even) some old laws to have been unconstitutional. The decision did so. (I don't know what Taney would have done about free blacks in the North.)

Taney argued that the people at the time of the founding of the country did not recognize blacks as people. As I read it, he was the first practitioner of construction by “original intent.” Basing a decision on “revised fact” is generally less offensive to stare decisis than a new version of law based on old facts. Taney's serious error is that the facts he used were already, in 1857, too far from true.

In Plessy v. Ferguson, 1896, the court faced a question of whether “separate but equal” treatment of blacks would meet constitutional standard for equality. This time, the court settled for a sociological “fact” of great dubiety. Could any parade of facts have shown where separate was equal, to a rational and fair audience?

Brown v. Board of Education, 1954, was explicitly based on a review of facts, documented especially in a sociological text by Gunnar Myrdal. Separate had not been equal. Laws needed to change, to recognize that the whole slew of Jim Crow legislation of 50-plus years was inherently not-constitutional. The SC did face up to the contradictions. The new facts mandated change, to enforce the constitutional guarantee of equal rights. Schools were the prominent target of immediate change.

These are examples of how facts affect law in civil rights. The provisions for “equality” in the Declaration of Independence, reinforced by explicit instructions in the 14th Amendment, gave the national government an enormous new scope of activities to overcome injustices and promote fairness. Other phrases have seen expansion of protections, freedoms and entitlements, too. 

The facts” are relevant; accept that the scope of laws can be expanded as a logical consequence. Here are several more, in very few words.

Eisenhower's building of the Interstate Highway System was justified by these "facts" – national security and national defense needed the ability to move soldiers and materiel across the country. And it needed healthy citizens to fill the ranks of an army. And there is the commerce clause that permits expansion of activities in many ways never dreamed of by the founders, who never knew any "national corporation." The health of the citizenry depends on clean air and clean water.

The constitution evolves. The new decisions become part of the wider constitution that is to be preserved.

I think I learned an important legal distinction between "facts" and "law" during the news coverage of the Appeals decision on California's Prop. 8 (gay marriage). The judge made summaries in those two categories, including 81 findings of fact. Reportedly, the SC would be almost forced to accept the judge's conclusions of fact, while they would be free to dispute his conclusions about how previous law - in this case, the Constitution - should be applied.

The daily coverage of the case indicated that the opponents of gay marriage leaned heavily on facts that were bar-room rambling (or, chat-room, these days), and history that either was a-historical or not relevant. The customs of the 1780s are not part of the constitution, but they did inform the writers. Men had rights, women and children did not. Women and children were chattel, and could own nothing. Those are facts that have changed.

Sociology may describe a tiny role for teen-revolt, but modern biology says that same-sex attraction is not a sinful choice, but (if you want this language) is the way God made some people. Competent science says that people who are homosexual are not notably criminal or insane. The defenders of Prop. 8 were reduced, it seemed, to admitting something like, "I read it somewhere on the internet."

Once the old-time asymmetry of marriage is removed (done! in the minds of the younger generation), there seems to be full justification for extending legal status, rights, protections, etc. The legal rulings from California generated great optimism on the gay-marriage side. The SC would have to do a large amount of legal twisting to avoid the natural extension of rights. However...

I used construction of the Constitution with forethought about the Teaparty mantra of "strict construction"; and about the 3 justices who endorse some version of original intent and strict construction.

What is strict construction? – adhere to the words that are written, and nothing else, using original intent, perhaps, as construed from either the authors of the Constitution, or the legislators, or the people of the time, by making use of old dictionaries when necessary. Mix-and-match to get conclusions that feel right.

Theoretically, it ought to be possible to come up with a consistent interpretation that way, given time to develop it. In practice, strict construction (to me) has been an excuse for self-indulgent decisions with a so-called conservative flavor: It serves as an excuse to pretend that no science exists beyond the 18th century, no new rights and entitlements; there are no new items of social contract embodied in 220 years of decisions. In other words, they have a program of radical retrenchment, not conservation. Because they grant themselves so much leeway, I am never too surprised at whatever those justices will decide.

The arbitrariness of strict-construction decision-makers is promoted by the novelty of their doctrine. Each Justice can choose to carve a path without much critical feedback – they are the defining authorities. The arbitrariness of their outcomes is illustrated by their disagreements on where "strict construction" leads them. I read documentation on that in a book praising Clarence Thomas.

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