Starbucks, Montesquieu and Constitutional Reform #7

Continuation of the prior part #6…

Those more then two millennia old events strangely reverberate with the upcoming Supreme Court case of Abdullah al-Kidd. He, a former University of Idaho football player Lavoni T. Kidd who converted to Islam, was arrested at Dulles International Airport and held in custody for 15 nights and then released without any charges and never been called as a witness.
In response to his suit, trying to hold the former attorney general John D. Ashcroft personally liable for the abuse of power, Ashcroft has claimed his immunity as a prosecutor. Of course the Supreme Court will rule in favor of Ashcroft as it already did in previous similar cases. However, how far the prosecutor’s immunity should extend and should it exist at all?
Let’s read Montesquieu’s The Spirit of Laws:
“…this is the advantage of this government over that of Cnidus, where the people could never get satisfaction for the injustices that had been done to them, as the law did not permit calling the amymones (magistrates elected annually by the people) to judgement even after their administration. one could accuse the roman magistrates after their magistracy.”
And what has happened when that personal accountability of the lictors for they actions when they were in office was abolished in late Republic? Well, we know that lead to its decline, degradation and Julius Caesar’s salvage plan.

No surprise, such a discontent of public towards the Supreme Court caused its advocacy efforts. You may find whole sections in a library devoted to the chants of mantras that the Court, in large, follows the public opinion. But what is a surprise, the leading voices in that chorus belong to liberals, who are supposed to promote their concept of “living constitution”. Why to shield from a public focus the institution they themselves desire to reform? Let’s read for example the latest book of Justice Breyer “How our democracy works”. Throughout the book he struggles with the question:
“Why the public would accept as legitimate and follow the decisions made by the inoffensive, technical, and comparatively powerless body?”

Behind his analysis of the landmark Supreme Court cases we see his dominant thought – The Court sought and was able to acquire more and more power, and that was good. The FORCE, which was dismissed by Hamilton as something the Court can’t have by definition, as well as the WILL. The Conservative wing of the Supreme Court has already proven him wrong regarding Court’s will, and now Liberals strife for the greater power.

From this standpoint Liberals are much more closer to (or more willing to misuse) the Hamiltonian aristocratic spirit of the Constitution then the Conservative guardians of its Latter. Though, what could be wrong with the wise, canning, foresighted custodians of the Constitution, cautiously watching over the naive, unconcerned and careless general public and its representatives to protect them from unwillingly inflicting a harm for themselves?

A prominent role for the Anglican-Deist-Mason elite, the elite of bearers of Ideas of Liberty, neutralizing the Autocratic Puritans and Catholics, in Hamilton’s design had a fatal flaw, which was pointed to by Montesquieu, that the virtuous republics can survive only in a homogeneous cultural environment and in a constant state of war with outside threats or expansion.

There exists a commonly accepted popular legend, especially among the Religious Right, about a so-called “Constitutional faith” of Americans. That the spirit that brought “pilgrims” – Calvinist, Puritan sects – into America, the spirit of Liberty from “religious oppression” of the official Anglican Church, whose head was the King of England, eventually lead to the uprising against the Crown, and the adoption of the Liberty promoting Constitution.

Meanwhile, a typical Puritan statement, formulating views on the government, belonging to John Cotton, one of principle ministers of Massachusetts Bay Colony, says:
“It is better that the commonwealth be fashioned to the setting forth of Gods house, which is the church: than to accommodate the church frame to the civil state. Democracy, I do not conceyve that ever God did ordeyne as a fitt government eyther for church or commonwealth. If the people be governors, who shall be governed? As for monarchy, and aristocracy, they are both of them clearly approoved, and directed in scripture, yet so as referreth the soveraigntie to himselfe, and setteth up Theocracy in both, as the best forme of government in the commonwealth, as well as in the church.”

Being criticized for the intolerance and departing from the spirit of Puritan Fathers who fled persecution in England, Samuel Willard, pastor of Old South Church in Boston, wrote:
“I perceive that they are mistaken in the design of our first Planters, whose business was not Toleration; but were professed Enemies of it.”

In contrast to popular belief of a prominent role of Puritans in the Founding, two-thirds of the Constitution Convention delegates belonged to a more tolerant Church of England, which tolerance could be seen up till now – with woman and openly gay bishops among its clergy. Many of Framers are even hard to be called Christians in full meaning of this word, because they were greatly affected by the Deist philosophy.

However, as time passes, elites change, and the cultural background of the new ones may have a deep imprint on the understanding of The Too Few and Too Powerful Nine of what the Spirit of our Laws are. Though Montesquieu stressed hard on the dependence of the nation’s laws from the nation’s historical and cultural background, he also showed that in times of conquest, crisis and sudden changes, it’s not necessary the character of the population majority that shapes the new laws of the nation, but the cultural and even linguistic background of a select few from the nobility group, as it happened during the conquest of Gaul by Francs.

Having such an unbalanced Supreme Court, we have a risk of the Justice seats being occupied not only by people with such a cultural background which makes them hard to understand what the ideas of Liberty are, but even worse – understand them in a very peculiar and alien way then the thinkers of Enlightenment Era, and, following them, Framers of The Constitution did.

Let me present you one interesting quotation:
“…why would people want to live under the “dead hand” of an eighteen-century constitution that preserved not enduring values but specific eighteenth-century thought about how those values then applied?”
Who, would you guess, said that? Some kind of nihilist, terrorist or an arrogant foreign dictator?

No, sadly, this is a quotation from the early mentioned book of the Supreme Justice Stephen Breyer. Well, here it comes to that. Justice Brier knows about “enduring values” better than Classical philosophers, thinkers of Age of Enlightenment, Founding Fathers and all other meek “We the people” of the United States. But, is that so?

For example, Justice Breyer refers to the Zadvydas v. Davis case, which he wrote the decision for, and which he’s proud of a lot. The case was brought by the lawful permanent resident (“greencard holder”) Kestutis Zadvydas, who lived in US for more than half a century, but, after being convicted in a crime and served the sentence, he was sought to be deported by the government, however, because he didn’t have any other citizenship, it was impossible to do so. According to the statute he was held in INS custody under, a detainee must be deported in 90 days, otherwise he could be kept in custody by the attorney general authorization practically indefinitely. Did Supreme Court ruled to free Zadvydas (and another petitioner in the same situation – Kim Ho Ma) immediately because the Constitution prohibits to “deprive” any “person… of… liberty… without due process of law”? Not so.

Stephen Breyer and 4 other Justices recognized that interpreting the power of attorney general to held detainees beyond 90 days for unlimited period would endanger the statute of being clearly unconstitutional, so they just reinterpreted it as every 6 months a detainee has the right to provide the evidence that deportation has no significant likelihood, and government must show it’s making some progress. And even if a detainee was able to undisputedly prove his “undeportability” in foreseeable future, he still has to be kept on a short leash of frequent regular INS check ups.

Has Justice Brier been guided by “enduring values” of our society, which do not allow to deprive person’s liberty, unless he broke the law? Period.
No, as he writes, he was concerned about “minimizing friction” between the Court, Administration and Congress.

Another example is the recent outrageous 8 to 1 ruling (of course with Justice Breyer in majority) in Snyder v. Phelps case, where the Supreme Court sided with the extremist Kansas’s Westboro Baptist Church, upholding its right to engage in hateful protests at military funerals. Supreme Court used the First Amendment excuse to shield the Westboro Baptist Church on the basis of protecting the speech on public matter. The Court had all formal means to do so, but, trying to promote toleration for the free speech and religious beliefs, it plainly violated not just “enduring values”, but core moral norms of human society.
Archaeological evidence (see Shanidar cave materials) shows us that even Neanderthals were respectfully treating their dead, decorating their burials with flowers. However, fundamentalist Christians do not believe in Evolution, and in this case we should agree with them – here we see a clear example of rather Degradation of mores, even in comparison to our caveman ancestors.

This obvious contradiction of the ruling and moral norms shutters the very foundation of the First Amendment. It raises the question: “Is the toleration and promoting religious diversity a really good thing?”. Montesquieu’s The Spirit of Laws offers a surprising look at these matters:
“When the laws of a state have believed they should allow many religions, they must also oblige them to tolerate each other. Therefore, it is useful for the laws to require of these various religions not only that they not disturb the state, but also that they not disturb each other.”
“As there are scarcely any but intolerant religions that are greatly zealous to establish themselves elsewhere, for a religion that tolerate others scarcely thinks of its propagation, it will be a very good civil law, when the state is satisfied with the established religion, not to allow the establishment of another.”

We see that the religious freedom means not freedom of the active end – freedom of imposing one’s religious ideas, advocacy and practices on others, but the freedom of the passive end – i.e. freedom to be shielded from such activities.

However it is a pattern of liberal Judges to fiercely guard aggressive and intolerant religious minorities in expense of more peaceful and tranquil major religious groups or general citizens, like we can also see in the case of Mount Soledad War Memorial Cross, which Jewish war veterans seek to remove. Such practices were especially stressed by Montesquieu as a very destructive policy.

On opposite, when the real issues of free speech were at stake in cases Denver Area Consortium v. FCC and Turner Broadcasting v. FCC, which effectively granted right of programmers, cable and local broadcasters to censor the content, Justice Breyer was not such a fierce freedom fighter, on the basis that the First Amendment guards the freedom of speech from infringements of Congress, but not private individuals and non-government organizations:
“We recognize that the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech–and this is so ordinarily even where those decisions take place within the framework of a regulatory regime such as broadcasting.”

These decisions were part of mass media deregulation process, which, as we’ll look at it later, played a great role in creating dangerous constitutional, social and economical consequences for our country.

Justice Breyer and other liberal Justices could interpret the Constitution according to their visions of “enduring values”, but does the general public, possibly sharing different values, need these interpretations and rulings? Stephen Brayer effectively deprives the public of the ability to have such values, calling them “political winds”, and reiterates again and again that the public should be taught a lesson:
“…to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution.”

Why? Anything about values? Not so, just practical considerations about herding sheeple: “This public habit has obvious advantages. An effective judiciary, capable of enforcing contracts honestly without corruption, helps… to encourage economic investment, and thus growth and prosperity.”
Again, like the Conservative Originalists rhetoric, it’s a typical Mitra’s speech.

And how that lesson of obedience should be taught? Through persistent and continuous brainwash:
“The examples also show that the public’s trust cannot be taken for granted. It must be built, and once built, it must be maintained. To maintain the necessary public confidence in the Court’s decisions, each new generation has certain obligations. It must learn how our constitutional government works, become aware of its history,… and observe the preceding generation as it builds on those customs. This must happen primarily through civic education.”
And if that isn’t helping? Well, this lesson may be taught with the help of sending in troops, like in the Little Rock case, which Justice Breyer praises.

He really has trouble understanding, on the conceptual level, that the power of Judiciary doesn’t come from propaganda machine or bayonets of troops, but, as Montesquieu, or even idealistic Hamilton stressed, that Judiciary does, and must have, only power of JUDGMENT, which comes from the reciprocal respect of the public if that JUDGMENT respects public’s “enduring values”, like the trust held by PIE First function caste – Druids, Dervishes, Brahmana, Flamen and Volhs.
Of course you have to have a respect and understanding of the Spirits of Law of the culture which gave rise of our Constitution.

However, how that happened that more than two centuries past, and the allegedly destructive Supreme Court didn’t play its role to the end? Are those fears over-exaggerated? Why The Republic has still survived, even without the
counterweight of the Varuna’s people in a form of Supreme Jury or a form of clerical body like a Guardian Council of Iran? The Constitution of Iran defines a no less sophisticated system of checks and balances comparing to the US Constitution, but its solution for balancing over-formalized judiciary by the wise and independent clerics won’t work in Western environment with a much more rigid and authoritarian Christian hierarchy.

The answer lays in the existence of another group of people, for whom the function of being “Varuna’s people” is the secondary one – Gandharva – patrons of artisans – musicians, painters and, most important, artisans of the Word – writers and journalists.

The term Fourth Power, applied to the Press, is, in a sense, an accurate and, the same time, misleading. By its function it is really a substitution of the missing half of the First, Judicial Power, but, by the nature of its composition, it borrows people resources from a not fully fit for that role constituency – the Third, Commoners caste, which, by its nature, should supply the Legislative Power.
To have a somehow working balanced institution is better than to have nothing, but the very important prerequisite for being a real Varuna’s priest in PIE cultures was to be a priest without a Temple. And here is the point where troubles start.

To be continued…


Making Our Democracy Work: A Judge’s View
Montesquieu: The Spirit of the Laws (Cambridge Texts in the History of Political Thought)
Montesquieu’s Philosophy of Liberalism: A Commentary on The Spirit of the Laws
Mitra-Varuna: An Essay on Two Indo-European Representations of Sovereignty

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One Response to Starbucks, Montesquieu and Constitutional Reform #7

  1. Pingback: Starbucks, Montesquieu and Constitutional Reform #6 | Massaraksh or The World Upside Down

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