Democracy & Distrust

I’ve written an article that appeared July 7, 2012 at In it, I support John Roberts’s decision as being an example of the type of judicial restraint I discussed in this section of my novel. Some of the people commenting on my article claim I am a liberal, and I even found my article on a site called “Liberal Whoppers” or some such. To the contrary, my position is that judicial restraint, in the style of John Hart Ely, is the truest form of conservatism. What follows is based on fairly esoteric stuff about the process by which judges rule on constitutional issues. It’s taken, in part, from the book “Democracy and Distrust, A Theory of Judicial Review,” written by John Hart Ely. It’s important that Americans begin to understand how, and why, the Supreme Court makes decisions. So, I tried mightily to craft this in such a way as to make it interesting and readable. See what you think…

(The Un-American Act, discussed below, is a fictional law banning firearms and public discourse that is anti-gay, anti-open borders, pro life, pro gun; basically it bans discussion of conservative ideas. This highlights a process-based inquiry into whether an act of Congress violates the Constitution, something very akin to the ruling just made by Chief Justice Roberts in NFIB v. Sebelius.)

Bradley saw Anne coming down the hall and he decided to duck into the classroom to avoid meeting her at the door. It didn’t work, totally anyhow, and their eyes made contact. Immediately he had the urge to go to her, to scoop her up in his arms… she looked so good. Her eyes bored in on him like laser beams—her chin raised prominently. Somehow, she just looked, well, intense. Put together. Attractive. Then he recalled that she was the one who had cut him off. His back stiffened. No. He wouldn’t give in. Anne paused and seemed to study him, then she continued into the classroom.

From behind the lectern, Bradley watched the students file in and study the room for the best place to sit. Whatever spot they picked, that would be it for the semester. No one, save the gunners, wanted to get very close. And even the gunners would try to stay back just a little—to feign nonchalance. This was always interesting to watch. Bradley allowed himself to smile at Anne. She smiled back but it seemed forced. Once everyone was seated, Bradley passed around the seating chart and started his lecture.

“What does [the Supreme Court decision in Marbury v. Madison] tell us about how the Court will decide a First or Second Amendment challenge to the Un-American Act?”

Anne’s hand shot up. Bradley waited a moment, hoping someone else would raise a hand. No one did. Christ, he didn’t want to get into a dialogue with Anne so soon. He needed time to let his hurt, his longing, settle to the back of his mind. Reluctantly, he pointed at Anne, careful not to say her name, since the seating chart had not made it back to him.

Anne sat straight up. “Actually, I’m confused about the matter. I just don’t know what’s going on with our legal system.” A number of students broke out laughing; a few snickered. Bradley noticed the 1960s hippy rolling his eyes. Bradley gritted his teeth. They were jerks. It had always been something that upset Bradley; getting into Michigan Law said absolutely nothing about one’s personal integrity or proclivity towards kindness and courtesy.

Anne continued, “On one hand, when I read things like the Declaration of Independence and the Constitution, I get a sense of awe and majesty—a sense that the law’s exacting procedures and principles give it a quality…” Anne held out one hand and rubbed her thumb and fingers together as if judging the quality of a piece of cloth. “… a substance… I think it was Joseph Addison who said of education what I’m trying to say about the law. He said, as I recall, it chastens vice, guides virtue, and gives, at once, grace and government to genius.” Anne paused and Bradley noted that the jerks had cut their demeaning actions. “On the other hand, a case like Marbury tells me that the actual text of the law may have little to do with the outcome when it interferes with the personal sentiments—activist goals—of the justices, or the President.”

Bradley was stunned. And so, it seemed, from the absolute silence that had blanketed the room, were the rest of the students. This line of thought was something he might expect from a very thoughtful lawyer who had been in practice for 20 years. It was way beyond the juvenile concepts held by most of his first-year students. Truth was, he didn’t even know what to say in response. And there sat Anne, bright eyed, leaning forward in her seat.

All his doubts about Anne Kreig flew out the window. This woman needed to be his wife. She was a jewel—a diamond. He was going to rethink the matters about dating a student and Jeff’s involvement in the patriots. From her words he knew that she would not possibly get involved in anything illegal. She was too thoughtful, too aware of right and wrong. Indeed, she put most of the legal profession to absolute shame. Bradley felt an immense pride in having her as a student, as a friend, and hopefully…

He had to get back to his class. A few students were starting to look at him a little funny. Now, however, he was far less concerned with things turning into a dialogue with Anne. The seating chart was finally passed back and he noticed a hand raise in the back of the class. He quickly looked at the chart and called out her name.

“Ms. Jones?”

Ms. Jones said, “It seems that the Court is willing to go beyond the four corners of the Constitution—that is, to look outside the Constitution for guidance—as there was nothing in the Constitution that required Marshall’s ruling. One of the notes a page or two after the case talked about Professor Lawrence Tribe. According to him, when the judges look beyond the Constitution’s four corners, what they see will be colored by their own eyes—by their own personal view of fundamental rights.”

Ms. Peacock was waiving her hand. Bradley pointed to her. “Yes?”

“I’ve read a bit of Tribe and find him quite off the mark. In fact, he gets into it with another American law professor, John Hart Ely, who, I believe, is, or was, a dean somewhere… Anyway, they get into it in a way that fits nicely into the sticky wicket you have with your Un-American Act. For example, Tribe says that a distinction between laws burdening homosexuals, such as prohibiting gay marriage, and laws sending pickpockets to jail, depends, necessarily, on a substantive theory of which group is exercising a fundamental right, and which group is not. He says a law against gay marriage should be ruled unconstitutional because of the desire to protect the fundamental value of personhood, of freely exploring one’s sexual identity. On the other hand, a law putting burglars in prison offends no notion of fundamental law.”

Ms. Peacock paused and reached into her purse for a tissue and blew her nose. Bradley wondered from where in the heck did he get these students? They were already so versed in constitutional issues. And thoughtful. This was really strange. He recalled the interview he had done for the New York Times’ poll—indicating a vastly increased interest in constitutional issues. Clearly, more people had been reading the Constitution than in the past. What was happening in society to cause this? Something made him think of Jeff and his friend. They, too, had been surprisingly versed. Bradley shook his head and tuned back into Ms. Peacock’s dissertation.

“People like Tribe believe that the courts should be employed when they don’t get what they want from the political process. Look what happened in California a while back. The citizens banned same sex marriage by putting it right in their constitution. Then the California Supreme Court comes along and says that it’s unconstitutional. I mean, how is that? The citizens put it in their constitution and the court says its unconstitutional. Seems a bit upside down. Anyway, the liberal thought process is that judicial intervention will be in sync with the particular direction of society, with society’s evolving view of what is, and isn’t, a fundamental right. Thus, in the case of the our Un-American Act, or even the Religious and Cultural Sensitivities Act, Tribe would probably say that justices should put their noses to the wind and observe the direction of change in America. Judges should be willing to curtail rights of an oppressive majority in view of more important goals of not offending Muslims.”

Bradley said, “So on balance, we should give up the First Amendment to avoid offending Muslims.”

“I didn’t say that’s the decision I would make. Personally, I think you folks have gotten everything backwards.”

“Fair enough,” Bradley said. “You said that you found Tribe ‘off the mark.’ Explain.”

“It’s easy. First off, if you have a Supreme Court that snoops around looking for the direction of change in society. How in Heaven’s name are they to know when they have found it? How does the Court recognize a dead-end in the political process? I should have thought a properly amended state constitution would not represent a dead-end, but rather the appropriate end to the political process. How does the court tell the difference? How does it really know the direction of change at any moment or, even if it knows, how does it contribute to that change in a way that doesn’t accelerate it too much or too little? And of course, this all begs the larger question of why nine individuals feel they are better suited, as judges, to entertain political questions that your Constitution unambiguously leaves to the other branches of government.”

Amazing, Bradley thought. Simply amazing. This was going to be the most fun constitutional law class he had ever had. He said, “All right then, how would you rule on the Un-American Act?”

“That’s easy too. John Hart Ely, and this would also be my preference, would have a look at the legislative process that generated the bill. He—I, would determine if the legislative decision classifies groups in a way that leaves us suspicious of the propriety or accuracy of the classification. Thus, I would closely examine laws against homosexuals, but not burglars, precisely because I have no doubt about the accuracy of the legislative perceptions about burglars, whereas, regarding homosexuals, I may doubt legislators’ ability to accurately define the contours of the group or, not being homosexuals, they may fail to recognize the importance to a homosexual of the right to practice and display sexual identity. The Un-American Act targets persons who threaten the security of the United States, so they are like the burglars, and we have no doubt about the accuracy of legislative perceptions. Therefore, the Court, if it follows a process-based inquiry, per Ely, would uphold the law. On the other hand, if the Court uses a fundamental right’s view, it’s possible that it would invalidate the law because it trenches so closely on long-established First and Second Amendment rights.”

Bradley said, “I liked your analysis until the end. I think there is a very good question whether Congress accurately apprehended the nature of the people most effected by the law. That is, these two laws are really attacks by Democrats against Tea Party conservatives who Democrats class as potential terrorists or weapons fanatics. And I’ve seen nuns arrested for passing out Bibles, and reporters arrested for asking questions that challenge the current administration. I think this might be a case where Ely would say there has been a misapprehension of the group regulated. On the other hand, conservatives lost the political process and elections have consequences. Obama told everyone that. And it’s certainly unseemly to have political parties running to the Supreme Court every time they get beaten.”

Anne had her hand up. Bradley pointed to her.

“Aren’t we getting off track on this? Seems to me the Un-American Act as well as the RSCA violate other provisions of the Constitution—like the First Amendment right of free speech and the Second Amendment right to keep and bear arms. And let’s look at the political process that started with Obama. He bullied private companies, threatened private citizens, ignored property rights, and basically changed us into a Socialist country. And he did it by refusing to enforce our immigration law that let millions of illegals into the country who now vote. Fact is, every one of those votes ought to be thrown out.” Anne thumped on her textbook with the knuckles of her hand which she had curled into a fist. “The Bill or Rights clearly establishes my right to bear arms—to speak my mind—regardless of who dislikes my guns or my words.”

Bradley said, “That’s a good point.” Anne’s hand shot up again and he almost called out her name but caught himself. He had stepped away from the lectern so he walked back and glanced at the chart. “Ms. Kreig. Do you have something else to add?”

“Seems to me the law is like a rock sitting in a stream. It has a pretty side that is seen by the casual observer. But reach into the current and pull it up. Underneath, you will find a slimy surface, mud, and leaches.” She raised her textbook to eye level and then tilted it so she could see its underside. “Judges are beholden to the political leanings of the president who appointed them. Presidents nominate this conservative or that liberal, and the Senate confirmation hearings are more concerned with the political or social views of the judge. No one cares that he or she possesses the necessary analytical abilities.” Anne suddenly released her textbook and let it fall from eye level. It dropped toward her desk, pages fluttering as the cover flew open. The book landed with a double thump, the first as the binding hit on end and the second as the book settled flat and the cover slammed closed. “It’s a crock!”

Bradley blinked at the noise. He was excited by Anne’s theatrics and conviction, which seemed contagious. Several other students were nodding and smiling. One, sitting behind Anne, even stood and leaned over the curved table and patted her on the back. She turned and smiled at him. Bradley recalled that she had been a professional singer—a performer. Well, her ability to manipulate an audience was evident. This was all amazing, and terribly exciting. He had never seen or heard of such an informed, interested, and involved group of students. It was almost like the public was obsessed with something and looking to the Constitution to figure it out…

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