Essentially Contested America

Isn’t there something peculiar about judges using different interpretive methodologies in constitutional adjudication? If constitutional judgments are objective, inter-subjective, or in some other way reliable across judges, shouldn’t the form of reasoning and interpretation generating the judgments be the same?  This doesn’t mean that if judges used the same methodology they necessarily would agree on every constitutional result. But the differences between formalism (textualism, originalism), say, and pragmatism are capacious suggesting that judges using these different methodologies are not talking about the same subject. In general, therefore, shouldn’t non-political decision-makers use the same standards for generating their decisions?

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday.  It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attempt to guarantee racial equality in promotions.  Leaving aside civil service rules, Title VII and employment law in general allow employers to make employment decisions, including promotions, on any basis the employer wishes as long as those decisions do not trigger a disproportionate impact on various groups.  Of course, public employers also need to abide by the Constitution and civil service rules, but these rules can be left to the side for now.  Employers may generally choose its supervisors arbitrarily and capriciously - even at random - and not run afoul of Title VII if the results lead to a fully integrated pool of supervisors.  Given that, any selection process that an employer believes helpful in choosing supervisors is generally acceptable.  However, if the process yields a racial impact, Title VII requires that the process be justified as accurate and necessary.  New Haven took the position that their method for choosing lieutenants and captains was a reasonable way to choose supervisors as long as the supervisors chosen were a racially mixed group.  However, once it became clear that the process yielded a racial impact, New Haven viewed the process as an insufficiently justifiable to overcome its racially disproportionate results.  Oddly, the conservative majority of the Court took the position that the method New Haven chose relied “on objective examinations to identify the best qualified candidates.” That is, the conservative majority took the position that a merely noncapricious process for choosing candidates for promotion that yielded a disproportionate racial impact was an objective measure of merit even though the employer that used the process took the position that the process could not be defended as an objective measure of merit.  This is troubling, but not necessarily surprising.

American constitutional culture, despite the protestations of many political scientists, is thoroughly judicial at least regarding the controversial conflicts that engage the imagination of the nation.  The Court virtually has the final say concerning the results of constitutional conflicts and the authority to determine constitutional norms and the character and content of constitutional concepts. This judicial supremacy isn’t inevitable. An interbranch solution between Congress and the Court might serve the virtues of republicanism and democracy better than judicial supremacy. Chief Justice Marshall entertained the possibility of a congressional override, although admittedly his remarks were prompted by circumstances in which the newly established Jeffersonian Republican administration was intent on attacking (or even eliminating) the last bastion of Federalist powers, the federal courts.  Rather than impeach a Supreme Court Justice, Chief Justice Marshall writes: “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would]a removal of the judge who has rendered them unknowing of his fault.”  3 Albert J Beveridge, The Life of John Marshall 177 (19191). The point here is that sharing the interpretation of the Constitution between the legislature and the courts would promote a system of self-government where the people and their representatives would play a vital role–at least a co-equal role–with an unelected Court. Additional structures linking the different branches of government would preclude 5-4 decisions where both sides have reasonable arguments, yet the vote of one individual determines the future of the nation.

Given the irrefutable fact that hundreds of years of oppressing a class of individuals through slavery and Jim Crow discrimination and segregation will determine to a large extent the skills and abilities those individuals will possess, how does a rational, just society remedy the deficiencies imposed on the class of individuals by the oppressors? The Supreme Court with almost grotesque consistency insists that compensatory racial justice is unacceptable or when conceivably acceptable subject only to the highest form of judicial scrutiny. OK! If the easy means of taking race into consideration is rejected, what is the appropriate means for for a just society to remedy centuries of oppression?  Throughout America’s war with race, few ideas have been advanced to answer this question.  Should minorities simply pull themselves up by their boot straps? What is the fair and rational answer to this question?

I have a simple question addressed to those Americans who oppose gun control.  Under what circumstances would they do an about-face and drastically change their opinion? To answer this question, let’s set aside the Second Amendment. This is critical to express the significance of my question. This significance does not rest on the existence of constitutional rights to gun ownership.  If there are sufficient grounds for gun control, these grounds may also be a basis for reinterpreting the Second Amendment, if its current interpretation protects an individual right to gun ownership, or to repeal the Amendment if no reinterpretation is possible. Setting the Second Amendment aside permits asking my question in the following manner.  What negative effects on public safety and the quality of life would have to occur before pro gun rights advocates say “Enough is enough.”? Consider one possible scenario.  Suppose in 2012 a majority of the American people elect politicians who are so committed to lowering taxes that law enforcement departments across the nation must restrict the quantity and kind of guns issued to law enforcement officials.  Suppose further the supply of legal gun purchases dramatically increases, though this increase could be easily restricted by simple gun control regulations. Finally, suppose the combination of these occurrences creates a culture where guns are used regularly to settle interpersonal conflicts. Would restricting gun purchases be justified in this hypothetical? Please don’t fight the hypothetical by changing its terms.  Would a situation in which road rage increases exponentially in the deaths of thousands of individuals persuade gun rights advocates to alter their position? If not, what would?  I’m not wedded to this hypothetical. I’m simply trying to understand what set of circumstances would convince a conscientious gun rights advocate to change sides.

As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities.  The fundamental issue before us is what is the purpose of our health care system – the health of the American people or the health of the private insurance companies?  Frankly, these two priorities are increasingly at odds with each other.  As Atul Gawande’s celebrated New Yorker piece reminds us, patients are best served, at the lowest cost, in locations where the medical culture is focused on the health of the patient instead of making a profit.  Because private insurance companies are for profit entities, they are institutionally poorly suited to best serve the needs of the patients.  This does not mean that all private health insurance companies are bad, of course, but it does explain why they are fighting the “public option” tooth and nail in this health care reform debate.  Their argument against the public option is that it is unfair to make private insurance companies compete with government provided health care.  Why?   Because the government can provide services at a lower cost so the competition would be unfair.  Are you kidding me?  All this argument proves is that the public option might hurt the private health insurance industry.

Currently the profits of private insurance companies account for 30% of the cost of our health care.  It’s time to face the fundamental question – how much does preserving the outrageous profits of the private health insurance companies matter?  Is it worth sacrificing access to health care at an affordable cost?  That’s really what’s at stake in the “public option” debate, and the answer to the question is obvious.  Interestingly, polls show that almost 80% of the American public supports a public option.  While Americans may distrust the government, they apparently distrust health insurance companies even more.  For the health of the nation, we need the public option.

I have heard complaints about how the Obama Administration is handling the Iranian election and its aftermath.  The problem with this line of complaint is that the complainers are not clear about what they want or what we as a country should want.  The complainers may want one of three things.  They may want Ahmedinejad out as president or they may want a one-person, one-vote type of democracy or they may want to fix a supposedly stolen election.

Those who merely want Ahmedinejad out can hardly expect the Obama Administration to appear push for that result.  Having Ahmedinejad removed is a high-risk strategy and may ultimately be a losing proposition.  If the Obama Adminstration seeks to have Ahmedinejad ousted and he survives, necessary engagement with Iran in the short run is out.  If Ahmedinejad were somehow ousted, we would be stuck with a different president who may not be much better on the key issues on which we differ with Ahmedinejad.  Of course, even if the substitute president were better than Ahmedinejad, it is unclear that he would have sufficient power to make a difference with respect to Iran-United States relations.

Those who would claim that a one-person, one-vote style of democracy in Iran is absolutely necessary would be hard pressed to explain why that style of democracy is so important given that we do not have one here.  Our system does not guarantee that the presidential candidate with the most votes - the candidate with the most votes for his electors - gets elected president.  There may be historical reasons for the Electoral College and there may be reasons to keep it.  However, it is not democracy in the vein of one-person, one-vote.

Those who want the Obama Administration to express outrage at a stolen election must present more evidence that an election was stolen.  In addition, they must explain why we care that an election was stolen in Iran.  Part of the claim that the election was stolen appears to be based on spotty election returns, the vast numbers of people complaining and the significant number of folks who have taken to the streets.  The Iranian Government’s response to the unrest has been problematic to say the least.  However, widespread complaints and extreme government overreaction does not amount to fraud or a stolen election.   Unfortunately, the people in control of the ballots are those who might seem disposed to favor Ahmadinejad.  However, that describes election adminstration in large parts of the world and even parts of the United States.

This is not to argue that the Obama Administration’s response on the Iranian election has been perfect.  However, it is unclear that an American president really wants to get involved in the elections of a foreign, sovereign nation, other than to condemn violent government action that appears to be a crackdown on the exercise of the human right to petition one’s government for a redress of grievances.  At least, it should not appear that an American president wants to get any more involved than that.

Americans’ love-hate relationship to the Supreme Court is bewildering. We, Americans, pride ourselves on living in a republican democracy. Majority rules, but only within the restraining framework of individual rights. Hence, American democracy is perfectly compatible with constitutional “filters” to make sure that majorities abide by the rights of minorities.  However the question arises whether these filters can permanently rob the democratic rights of self-government and deposit them in a system of institutional practice which renders the democratic right to self-government problematic.  Is this true of judicial constitutionalism in the United States of America? What conceivably can justify the Court having virtually the final word of constitutional meaning, norms, and imperatives? Few scholars, politicians, or even citizens want to recognize this as a problem and pursue possible remedies.  But it nevertheless is a problem that thwarts the development of an authentic institution where through filers which ultimately can always be revised by the people, Americans can decide upon the direction of their future. Watch next month when one candidate for membership in a nine-member institution with enormous power will be subjected to intensive questioning about their substantive constitutional commitments and the methodologies used to arrive at these commitments. The irony in this ritual will be that the questions will produce few significant answers. Neither the Right nor the Left will be satisfied. The problem is that this practice of judicial constitutionalism has rewritten the Preface of the Constitution from “We the People.” to “We the Court.” Despite the many important interactions between the elected branches and the judiciary, the Court has over the past two hundred years garnered an inordinate amount of power, a power incompatible with any plausible sense of self-government.

We all have our blindness, but I cannot fathom the criticism that President Obama should be acting aggressively in supporting the Iranian demonstrations beyond calling for the cessation of violence and out solidarity with the Iranian people.  Anything the President does potentially damns the United States and harms the demonstrators. Comparing our action in Eastern Europe or the Philippines with current events in Iran makes no sense. Eastern European countries were fighting the Soviets, nationalism reigned against an evil oppression. We did not have a history in these countries as the great Satan. In the Philippines, we were the good guys and had much more leverage. The situations are simply comparable. Yet, the Republican stridently urge President Obama to side with the reforms thereby unifying the entire nation against us.  One can only suspect the Republicans want failure. How else can their irresponsibility be explained?  What good would it do to interject ourselves into a rebellion that it owned by the Iranian people not by any foreign nations especially ones that have played such a dark role in this history of Iran. Perhaps, the Republicans want the wrath of the Iranian leadership and the reformers unleashed on the United States to justify military action against Iran. Is this was Bush-Cheney would do?  Is this what insanity demands? Keep in mind people are dying in the streets. What should the U.S. due provide the Iranian dictatorship with even greater justification from its perspective to kill its youth? Shame on these arm chair warriors.