Essentially Contested America

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.

First, the controversy is not merely about election fraud or irregularity.  Second, the controversy does not devolve around two particular policy political platforms in contemporary around.  More important, the controversy concerns just how power wit be distributed in Iran between the clerical elite, the religious conservatives, the army, the religious revolutionary guard, and most important, the people armed with technology that makes  shutting down the essentials of democratic expression, communication, organization, and accountability virtually impossible. Placing ordinary technological devices in the hands of a galvanized people seeking democracy, liberty, equality, and community could very well be the unexpected elements that will be vital for a new world order. This new world order, with the advent of democratic technology, might be brought about from the bottom up with ordinary folks able to express its commitment to the inherent value of all human beings and to respect their collective identifies dedicated to a panoply of human rights and justice.

In a ruling a few days ago, election officials in Washington, D.C. decided that a referendum on whether the District of Columbia could recognize the marriages of same-sex couples who were legally married in another jurisdiction could not occur.  The officials determined that allowing a referendum on the issue would itself authorize discrimination that the D.C. human rights law forbids.  Not surprisingly, the referendum’s backers were not happy.  This issue is a variation on the question of whether a majority can vote to take away the rights of a minority.  The answer to that question is, obviously, no.  However, the answer begs the question of whether the subject of the referendum really is a right of the minority. Whether having one’s valid marriage from one state validated in another state is a right protected by a D.C. statute is the crux of the issue.  Though the supporters of the referendum argue that the determination of that issue ought to go to the voters, there is little reason to agree.  The majoritarian impulse to use 51% (or more) support for an issue to get that issue resolved in one’s favor is strong, but is sometimes wrong.  Majoritarian impulses can be used to deal with a great many important issues.  However, they cannot be used to deal with all of them.  The initial determination of whether a right exists or can be abolished by referendum is a task best left to that most non-majoritarian of bodies – the courts.  Given that the supporters of the referendum have vowed court action, that is just where the issue will be resolved.

Lawrence Goldstone’s book, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review (Walker 2008) promises to be an illuminating contribution to the controversy over whether judicial review, let alone judicial supremacy, was made up, as Justice Scalia contends, or rather in some sense intended by the Founders and ratifiers of the Constitution.  Chapter Two is one of the best discussions of the idea of a revisionary council I’ve come across as well as plainly demonstrating the radical conflict over the Court’s role in such a council and just what its independent role should be. It seems clear the Convention cannot be used as dispositive evidence that the role of the Court to strike down legislation somehow was assumed or that there was anything resembling a consensus on just what this role should be.  I haven’t finished reading the book yet, but if the first few chapters are any indication of what’s to come, I eagerly await Goldstone’s narrative.