Some time ago I published a review of the book “Making Our Democracy Work: A Judge’s View” on Amazon, and it proved to somewhat controversial. There were some nasty comments on it (though quickly removed). But one of the comments was quite a constructive. Here is a response to its critique:
The dichotomy you, it seams, is caught in (as well as your opponents from the conservative camp), that there must exist the one, “right” way for interpreting the Constitution out of two possible approaches: “Dead Constitution” of Originalists or “Living Constitution” of Liberals, is really a false dichotomy.
Both wings of the Court gorge themselves, or prey (if you will) upon the back-door Alexander Hamilton planted into the Constitution in the form of over-powerful and poorly-balanced Supreme Court. And that was not just a blinder, but a conscience deception – during Constitutional Debate he quoted Montesquieu out of the context that the Judiciary is the weakest (“next to nothing”) branch of power out of them all, and built his case of necessity giving Judiciary unprecedented powers because it “has neither FORCE nor WILL” and “the general liberty of the people can never be endangered from that quarter”.
However, if we bother ourselves to read what actually Montesquieu was talking about in that chapter (Spirit of the Laws, Book 11, Chapter 6), we’ll see a completely different line of thinking. Montesquieu says that because the Judiciary is the most “terrible” brunch of the power, due to it’s through this power an individual experiences the destructive might of the State, it should be deliberately weakened and become, in a sense, “invisible and null”. And his recipe for the Judiciary is no way a life tenure of career judges, but a frequently rotating body where the jurors have a leading voice and the judges are merely translators to a legalize.
As a stray-away thought, it’s very fascinating that an epithet “terrible” also is applied to a Hindu deity Varuna – one of the representatives of a dual Judgment (Brahmana) function (Georges Dumezil, “Mitra-Varuna: An Essay on Two Indo-European Representations of Sovereignty”); Montesquieu uses a setting of the prominent mithranian-varunian indo-european myth of Cupid-Psyche/Melusina/Pururavas-Urvashi/Frog-Princess in his fable Temple of Gnide, as well as he mentions special priests in German Things (tribal councils), whose function was to bind over-violent participants, which action is an another epithet for the Varuna The Binder. As well as his Roman counterpart Romulus with his band of Lupercy, who were girt with thongs and were caring bundle of staves, ready to bind and punish violators of the order. These bundles, called fasces, bound together with ropes, representing power and justice, gave rise, both, to a term fascism, and symbols of French and American Republics. You can find these symbols in White House, Supreme Court, Senate, most prominent monuments like Statue of Liberty or Lincoln Memorial, Universities and Military insignias, many state and local seals and buildings.
The main purpose of the wild, untamed Hindu Varuna (or his Roman counterpart Jupiter or Romulus) was to balance the over-formalized contract over-seer Mitra (or Dius Fidius, or Numa). In Rome, the formal civil and criminal law – ius, was balanced by the moral and religious law of the College of Pontiffs – fas (Hans Julius Wolf, Roman Law: an Historical Introduction). Without that balance, Ancients recognized the formal judiciary will dry, crumble and die. Especially, to remind of the everlasting jeopardy for the formal low to become a walking undead, one of the two principal pontiffs – Rex Sacrorum – was obliged by the ‘job description’ to have a wife – Regina Sacrorum – and children, to ensure that the vital force of the bringing a new life in this world will guard the judgment from deterioration.
It seams you also noticed the notorious affection of Supreme Court Justices to deathly epithets, no wonder why photos of The Nine often have that Halloweenish look.
But back to our business. Why would Alexander Hamilton dare for such a bold deception of misquoting Montesquieu? Which could be easily caught, and was indeed caught during the Constitution Debate? “Brutus” (most likely pseudonym of judge John Yates) caught the danger of the Hamiltonian model right away in his, now we can see prophetic, “Antifederalist” Papers concerning the Judiciary:
“There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
“The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution…”
“… they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.”
“… a trial by jury … will soon become … [a] mere matter of form; for an appeal may be had to supreme court on the whole merits.”
What important purpose this back-door (as well as two others, closed by 12th and 17th amendments) was supposed to serve? Don’t forget it was the first full-scale practical application of the Enlightenment political thought, and if things would go awry, you better to have some manual controls to steer the ship in the right direction. Hamilton was well known for his aristocracy-centric views:
“All communities divide themselves into the few and the many. The first are the rich and the well-born; the other the mass of the people … turbulent and changing, they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the Government … Nothing but a permanent body can check the imprudence of democracy.”
and saw Justices as such a guard of the Constitution, and he was pretty frank (in contrast to today’s apologists of the Supreme Court power, like Justice Breyer with his Aesopic language of your favorite “border collie” quotation) about the possible source of the danger to it:
“The independence of the judges is equally requisite to guard the Constitution … from the effects of these ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves … have a tendency …
to occasion dangerous innovations in the government.”
“… it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community. “
It might have had a merit with the anglican-deist-mason minority controlling the political life in the times of Founding, but, as Montesquieu mentions in “Grandeur and Decadence of the Romans”, virtuous republics will last as long as they maintain the culture of their citizens uniform, and any cultural contamination will lead to the inevitable corruption of the system. And the whole purpose of the divided and balanced government was to give the heterogeneous society a stability, while the over-powerful Court introduces the same weakness which destroyed Rome, if the Court gets in the wrong hands.
American elites did changed, and today’s elites, represented in the Court, may have completely different cultural background, agendas and interests than those of the Framers. No wonder we hear this chorus about hairy, smelly, troglodyte philosophers of Enlightenment, which had no clue about “complexities” of our life. Indeed, what good can come from a person who doesn’t have an iPhone in his pocket, or Tweeter, or at least Facebook account?
And the change of elites is not just a hypothetical threat. Actually, most shameful and destructive pages of the US history were instigated by the Supreme Court. Justice Brayer mentions the Dred Scott case, which triggered the Civil War, but that’s not all. The Discovery Doctrine, introduced in the Johnson v. M’Intosh case, which was guided, again, by the Court’s strife for more power, has lead to the extermination and displacement of native Americans (for example “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands” by Lindsay G. Robertson).
Jim Crow laws in the South emerged and existed not in the legal vacuum, or against the Constitution. They were blessed by the Supreme Court, which effectively torpedoed 14th and 15th Amendments in the last three decades of XIX century. For example the Civil Rights Act of 1875 was abolished as unconstitutional by the scandal 8-1 ruling in Civil Rights Cases in 1883 (for instance “Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903” by Lawrence Goldstone).
The Court conducted number of assaults on Roosevelt’s New Deal policy, and only his persuasion and political longevity saved the reforms. By the way, after 22nd amendment we can’t rely anymore on the effective standoff of the President against the potentially destructive Court.
Can we find reviews of these key cases in the Breyer’s book? Almost not a pip, except of lightly mentioning Plessy here and there, and that’s not surprising. Even brief discussions of these cases would cast a dark shadow on the Breyer’s glorious image of the Supreme Court’s border collies.
For example in the analysis of Little Rock cases Justice Breyer don’t shy away from a pathos worthy movies like “4th of July”, where brave earthlings defeat an alien menace: “the Little Rock story represents a hard-earned victory for the rule of law”, as well he uses the case to promote his concept of “living Constitution”:
“Suppose they [those who wrote XIV Amendment] believed that enactment of the clause
[“equal protection of the law”] would not require integration of the District’s then-segregated schools. Must we then follow those beliefs, say in 1954, when the Court decided… that the clause forbids segregated schools?”
Don’t suppose, Your Honor, or rather do not lure less savvy people into supposing, just check the historical facts. It was not aliens who came up with the wicked “segregated by equal” motto of Jim Crow Laws’ interpretation of XIV Amendment, and not a “barbaric” public thinking of 1860’s-70’s – John Bingham, primary author of the Fourteenth Amendment, was saying he deliberately used the “privileges and immunities” language to overturn the Dred Scott ruling that “privileges and immunities” of Bill of Rights do not apply to blacks, and the Civil Rights Act of 1875 explicitly stated that everyone, regardless of race, color, or previous condition of servitude, was entitled to the same treatment in “public accommodations”. The irony is that it were life-tenured, over-powerful Justices of the Supreme Court, who engineered, orchestrated and blessed a narrow interpretation of XIV Amendment of Jim Crow Laws. And what was even more ironic, the Court declared the Civil Rights Act of 1875 unconstitutional under interpretation of XIV Amendment as prohibiting discrimination by the State, but not by private individuals.
Exactly the same argument Justice Breyer resorted to, to justify the legality of censorship by the private broadcast networks in the above mentioned Denver Area Consortium v. FCC and Turner Broadcasting v. FCC cases.
And don’t be so ironic about “bayonets of troops”, or be such a cold-hearted like Justice Breyer: “The soldiers lowered their bayonets, but they injured only a small number”. Yeah! What a big deal – few were prickled by a bayonet or had their skull crashed by a rifle butt… Just meditate for a moment on the very fact of using troops, and not just a troops, but the heroes of the Normandy landing, troops, which are supposed to be used only against the foreign power, these troops were used in school in the heart of America. And if, for Eisenhower, as a Commander in Chief, that was the right thing to do, for the Supreme Court that was a manifestation of the out-right alienation from the popular opinion (after Little Rock and the violence incidents, it was devised as 4 to 1 in favor of slower desegregation process), and a total failure of what is supposed to be the solely function of the Judiciary – JUDGMENT. Even Eisenhower, in private conversations mentioned that the stupid ruling of the Court (Brown) rolled back the progress in the South by 15 years.
Michael Klarman, in his “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality” book concludes that Brown radicalized the Southern politics, galvanized the desegregation opposition, and brought up to power a new, race-obsessed generation of politicians, comparing to the early 50s ones, who were constructively working on the general social issues, downplaying the racial differences.
Another interesting observation is that the Brown not really inspired the Civil Rights movement, but created the atmosphere of mistrust and racial phantasm, which allowed Martin Luther King Jr. and his SCLC lieutenants to employ their violence provocative tactics of “creative tensions” in Birmingham and Selma TV show-downs, which required a “cooperation” from low-enforcing officers, which would be really hard without the post-Brown agitation. Such tactics worked brilliantly and televised police brutality has conditioned the popular opinion in a way which enabled the passage of Civil Right and Voting Acts.
However should we care that the ‘best’ feelings of clansmen, racist and xenophobes were hurt during the Civil Rights movement victory? Think again, says Philip Jenkins in his “Decade of Nightmares: The End of the Sixties and the Making of Eighties America”. The same way as Brown radicalized, for the worse, political life of the South, the Civil Rights Movement victory has brought a sweeping change into the national political climate.
The rich popular and political discourse on the wide range of social issues was replaced by the racial cold war. The white voter was so desperate for the racial conservatism, so he was ready to forget his prime economical interests, and to swallow the bate with the strings of the economical and social conservatism attached.
The new generation of Republican politicians (actually reincarnation of, it seamed, gone for the good, Goldwater’s ghost) exploited the opportunity, leaving New Democrats competing for the spoils of black, latino, asian, gay, lesbian, etc. vote. Old school of New Deal politicians, both, Democrats and Republicans, were gone, which transformed those parties, one – into the Party of Big Capital, another – into the party of Vocal Minorities.
As a result, in last three decades, US socially degraded to the level of Third World. A death sentence was reintroduced, and actively used in many states which once banned it, making US the only developed country which practicing it, so putting us in the company of Saudi Arabia, Yemen, North Korea, China, Libya, etc.
A prison population skyrocketed not only to the absolute and per capita first position in the today’s world, but also overshadowed the worse years of Stalin’s GULAG.
The term ‘poor’ (and motif of helping those people, which account from 80% to 50% population, depending on how you define a ‘middle class’) has completely disappeared from the political language, and words ‘Great Society’ or ‘Welfare State’ became swear words.
In terms of social inequality, US has reached the Rwanda and Mozambique level, with 50% of population having only a bit more then 2% of the national wealth, with top %1 accumulating unprecedented almost 40% of it. Actually, this number has a precedent – the same wealth accumulation was recorded at 1929, on the verge of Great Depression.
And today’s mortgage and financial crisis is nothing more then the over-crediting crisis, when people’s lifestyle and spending habits of the Great Society were not timely changed, accordingly to the “New Normal”, the Third World like social reality of nowadays (Aftershock: the next Economy and America’s Future by Robert Reich).
Still, is this an acceptable “collateral damage” to achieve such an obviously right thing as the equal civil rights? You may want to “think again”, again. Thomas Petterson, in his book “The Vanishing Voter: Public Involvement in an Age of Uncertainty” draws attention to the paradox that, despite the efforts to remove formal and informal barriers before the black voter, the real participation and political involvement of the blacks were not significantly risen.
Where the socially and politically active black voter went to? To those, world record holding jails, writes Michel Alexander in the “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” book, that “more African Americans are under correctional control today… than were enslaved in 1850”. There are about 2.5 million prisoners right now in US directly in “correctional” facilities, and 7.5 million on probation and parole with no rights to vote (comparing to 2 million GULAG prisoners). The War On Drugs, a blue print for the future War Of Terror (which undermined basic civil liberties this time for all Americans) ‘gracefully’ cut them off from the socially active life: “We don’t want to give enemy combatants the liberties they hate, do we?”.
The unfortunate change of the desegregation discourse of late 40s, early 50s, as an expression of respect to the bravery, scarifies and social value of the blacks during WWII, to the militancy of post-Brown and Civil Rights moment era, created, in a sense, feelings of illegality and unfairness of the Civil Rights victory, plunging blacks and whites into the gorilla race warfare.
Was it so hard to predict these consequences and side-effects of the forced desegregation in the Brown decision stile? For these highly sophisticated contemporary liberals – apparently, yes.
But what about those outdated Enlightenment thinkers? Let’s see what Montesquieu says on changing morals, mores, customs, traditions and religion. He argues that it is bad to change dominant customs because a radical change in the way of life will unsettle men’s opinions about everything and create a threat of revolutionary upheaval.
“A more sure way to attack a religion is by favor, by the commodities of life, by the hope of wealth; not by what drives away, but by what makes one forget; not by what brings indignation, but by what makes men lukewarm… in a word, history teaches us well enough that the penal laws have never had any effect other than destruction.”
What about recent developments, which didn’t get in Justice Breyer’s book in time? No lessons learned from the past. As we can clearly see that, the recent Supreme Court rulings, like the Citizens United case, which effectively has rewritten the Constitution in a manner: “We the People and Corporations of the United States…”, have proven how lame was the Hamilton’s excuse that the Judiciary “has neither FORCE nor WILL”.
Oh, yeah, the Supreme Court has its WILL, and a pretty strong, dangerous one, as we saw in this case, where the Court not only came up with the very broad ruling, which threatens the peoples’ liberty by effectively giving equal rights to corporations, but it has also rejected the initial formulation of the case and explicitly asked plaintiff to widen the complaint, which would allow the Court to rule such a far-reaching decision.
Granted, it was the Conservative Wing doing, but where were Liberals? Have we heard their loud appeals to the public outside the Court’s chambers (supposing there were ones inside)? Especially considering that this decision cased a wide public outrage, with, according to polls, 80% disagreement with the Court’s ruling.
No. To the contrary, we read and hear endless chants from liberals in books, periodic and broadcasts that the Court follows the peoples’ desires (like, for example “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution” by Barry Friedman).
Don’t you find it a bit suspicious? Why to repeat it so many times, if it were so obvious?
Why, indeed, rock the boat by breaking the Judge’s “ethics” by appealing to the crowd, if the Instrument, the Court, gives you presumably not existent (by Hamilton) FORCE or POWER, even if all it is based on is only the habit of obeying you? The POWER to monopolize JUDGEMENT by breaking established morals, mores and customs so people would accept the inevitable, their doom of (I’ll repeat Justice Breyer’s quote) “…accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution”.
Which POWER the liberal judiciary never shy or lazy to excursive, as it was in mentioned above in Westboro Baptist Church case or even more recent ASHCROFT v. AL-KIDD case, in which 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, and was trying to hold the former attorney general John D. Ashcroft personally liable for the abuse of power, the Supreme Court unanimously upheld the Ashcroft’s immunity (like anybody had any doubt in such a ruling).
However, how far the prosecutor’s immunity should extend and should it exist at all? Let’s read Montesquieu’s The Spirit of Laws again:
“…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… see the affair of tribune Genutius.”
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 of the Republic and Julius Caesar’s salvage plan.
But why would Supreme Court consistently try to break people’s will, soul and passion? Is it counter-productive and risky? Paradoxically, not at all. I have to agree with you, again, on the importance of the cultivating a political virtue in citizenry for the political parties and the Court. But let’s think this thought through to its logical end, and see the inner mechanics of political virtue which Montesquieu laid out:
“The less we can satisfy our particular passions, the more we give ourselves up to passions for the general order. Why do monks so love their order? Their love comes from the same thing that makes their order intolerable to them. Their rule deprives them of everything upon which ordinary passions rest; what remains, therefore, is the passion for the very rule that afflicts them. The more austere it is, that is, the more it curtails their inclinations, the more force it gives to those that remain.”