“How our democracy works” by Justice Breyer: “Why would people want to live under the “dead hand” of an eighteen-century constitution?”


How our democracy works Throughout his new book “How our democracy works” Justice Breyer 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. What’s the reasoning behind that thesis?

Let me start a bit from afar, by presenting you my favorite quote of the book:
“…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 of the Supreme Court Justice Stephen Breyer. Well, well, well… Justice Brier knows about “enduring values” better than Classical philosophers, thinkers of Age of Enlightenment, Founding Fathers and all other “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?”.
Charles-Louis de Montesquieu, the Enlightenment Age thinker, whose grand works have shaped the views of  Framers of the Constitution, in his book 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.”

Justice Breyer 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.”

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 have trouble understanding on the conceptual level that the power of Judiciary doesn’t come from propaganda machine of bayonets of troops, but, as Montesquieu stressed, that Judiciary does, and must have only power of JUDGMENT, which comes from the reciprocal respect of public if that JUDGMENT respects public’s “enduring values”, or, in Montesquieu’s words – Spirit of Laws.

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