The Supreme Court vs. the Constitution (Discussion)

At the end of my last post entitled "The Supreme Court vs. the Constitution" I stated: “Comments on the above are welcome and will be responded to, but will not be published or posted. However, the discussion that followed has been so interesting and informative that I do want to share it with you.

So here goes...

Robert Malchman, Esq. of Brooklyn, NY was brief in his remarks. He wrote:

I believe you have the better of the argument, and the errors are quite stunning.  Even in his rebuttal, Mr. Walpin gets Griswold flat wrong.  That case had nothing to do with people being secure in their homes; it was an appeal of petitioners' criminal convictions for selling birth control devices.  Searches and homes, and the Fourth Amendment were irrelevant.  The Court instead found a right to marital privacy, which included the purchase of contraceptives.

As is my wont, I was not equally brief. My response is below:

Yes, I was surprised that he had such a poor defense. It wasn’t just Griswold, The case he cited to support his Declaration of Independence argument, as you can see from the quote, says just the opposite. And how anybody can talk about religion in the public square and totally ignore the 1st amendment is beyond me.

I was surprised because Walpin has always been rather brilliant. At CCNY where we went to school together he was President of the Student Council and I think an editor on one of the newspapers. He took on the President of the college and made him back down. He then went to Yale where he became Editor in Chief of the Law Review. He clerked for two federal judges and then joined the US Attorney’s office, where he was in charge of the prosecution of Roy Cohen, Sen. McCarthy’s sidekick.  He then joined the Rosenman firm where he soon made partner and became the head of its 65 person litigation department. After Walpin retired Bush II appointed him as Inspector General of the Corporation for National and Community Service See here. Obama fired him.

Regardless of the virtue of his Tea Party positions, I would have expected his book to be on more solid ground and his debate with me to be more lucid. Surely his briefs in his law practice must have been argued with much greater skill.

I also noted that he resorted to an attack on his critic rather than relying on the merits of the argument, saying:

"I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find…”

The other comment came from Leonard Levenson, Esq. of Manhattan, NY. He wrote:

I have read your review of Walpin's book, his rebuttal and your sur-rebuttal.  Without going into specifics, it seems clear that Supreme Court decisions turn a blind eye to the doctrine of Stare Decisis.  The court does so for 2 reasons:  First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country; a  remarkable percentage in these days of political division and the obvious politicizing of the Court.  Compare this with the favorable rating of 18% for congress and 44% for the presidency. Because of this respect and prestige they are able to make an imprint upon our life based primarily on the Social and Economic views of the justices. 

 
Secondly, Stare Decisis has limited importance where the Court under discussion is the court of last resort. I suspect that the Court from its inception was a political institution.  It increased its political nature as its prestige increased.   

      

The Supreme Court in the 1930's, in combating Roosevelt and the New Deal measures was acting from a social, economic and political point of view; certainly not from a judicial.  The court members were mostly appointed by the Harding, Coolidge Hoover presidencies and were largely chosen from the empowered elements of our society.  They mirrored the thinking of the 20's just as the Warren Court mirrored the thinking of the 60's (despite the fact that Warren was a Republican and voted to intern the Japanese during WWII). 

     
For the reasons stated, it seems that Walpin's message misses the point, completely.  Simply stated, I believe each Supreme Court justice interprets the constitution more with an eye to his social philosophy and political tone of the times that by a strict adherence to the intention of the founders or the idea of Stare Decisis. 

          

As an aside I did not research the appointment history of the Supreme Court justices of the 30's.  Knowing you excellent reasoning ability, your thoroughness in research and enjoyment of the intellectual battle, I tremble when I cite facts to prove a point to you.

Prompting my very lengthy annotated reply:

You are correct about my " thoroughness in research” because I believe in facts first and then opinions, as opposed to the current trend toward opinions first, and we will invent facts to suit the opinions, which was very much in evidence in Walpin’s very poor defense of his views.

So let me begin by correcting your comment, "First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country;”

In fact the Court like the rest of our governmental institutions is held in low esteem. Your “facts” are very much out of date. 

Allow me to quote from the Rasmussen Reports as of September 26, 2013: 

"Just 26% of all voters think the Supreme Court is doing a good or excellent job, down from 28% in June. Just as many (26%) rate the Supreme Court poorly, but that's down, too, from June’s all-time high of 30%”. See here.

I think that was a major factor in Justice Roberts deciding to break with his Right Wing colleagues, and uphold Obamacare on the basis of a valid tax, though not on the Commerce Clause, by which, I believe, he hoped to keep his agenda of striking down liberal laws by restricting the Commerce Clause, while improving the standing of the court. It didn’t work. The Court’s reputation continued to decline, as it infuriated the Right, while doing nothing for the views of the Middle or the Left.

The Court, I believe, was in very high esteem after the Nixon fiasco, where the country felt the court had saved our Constitutional system.

Now let me address your next comment, namely, "The Supreme Court (members) in the 1930’s ... " were mostly appointed by the Harding, Coolidge, and Hoover Presidencies and were largely chosen from the empowered elements of our society. 

This is correct! That court consisted of Charles E. Hughes, Owen J. Roberts, Benjamin N. Cardoza appointed by Hoover, Willis Van Devanter appointed by Taft, George Sutherland and Pierce Butler appointed by Harding, James C. McReynolds appointed by McKinley, Harlan Fisk Stone appointed by Coolidge, and Louis D. Brandeis, appointed  by Wilson.

Thus only one Justice, Louis D. Brandeis was appointed by a Democrat, Wilson. But that should come as no surprise to anyone, since Republicans held the Presidency for 12 years, similarly to the 12 years of Republican rule in the White House during the Reagan/ Bush years and the 20 out of 28 years if you count the Reagan to Obama years, where we had Republicans in the White House continuously, with the break of Clinton for 8 years.

I assume that in raising the question of who appointed  the Supreme Court Justices you assume that this is a predictor of how they will vote. But that has not been true through most of our history, and is a relatively recent phenomenon.  As I point out above 8 of the 9 Justices were appointed by Republicans, which one might assume would mean that the votes striking down New Deal legislation would be 8 to 1, but that was not the case.

Most decisions were five-to-four with only four Justices consistently voting to strike down New Deal legislation, and the fifth vote coming from various other members. See here. Also here and here.

Just when appointments became predictors of how a Justice would vote is something I have not researched, but I suspect it started with Nixon’s southern strategy when he made two nominations of outspoken racist Southerners G. Harrold Carswell and Clement Haynsworth for the vacancy, but the Senate rejected them. I suspect that from that time on, Presidents made nomination not on the basis of qualifications, but on carefully vetted political and judicial philosophies. 

You say: Stare Decisis has limited importance where the Court under discussion is the court of last resort. This is an important point and I think that what this whole discussion leads to a conclusion that Walpin, you and I might be able to agree on. The Court is too powerful!

But that has long been a view and various proposals to reduce the Court’s power have been proposed. After the Court struck down the New Deal legislation, "Public anti judicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional." But they went nowhere.

However, Roosevelt’s court packing plan, which was denounced by many even in his own party, seemed to have the desired effect, causing one of the Justices to change his votes to validate New Deal legislation, resulting in the famous slogan: “The switch in time that saved nine”. See here.

But with life expectancy short Roosevelt was able to replace all nine Justices with his own choices by 1941. See here.

We talk about equal branches of government. But to quote George Orwell "Some are more equal than others.” Congress is balanced off by having two branches and subject to a veto by the President and by the Supreme Court. The President can be checked by Congress’ refusal to pass the legislation he desires and by the Supreme Court, but the Court can only be over-ruled by an amendment to the Constitution that needs 2/3 of both Houses and 3/4 of state legislatures, an almost impossible task, and the power of the Court has been enhanced by the longevity of life expectancy and the tendency of Presidents to choose Justices who are young, thus extending their philosophy long after another President or Presidents take office. It is unlikely that Obama will be able to change the philosophical nature of the court, since the only Justice likely to retire (or die) during Obama’s remaining years is Justice Ginsburg, whose replacement by Obama will not change the balance.

But you fall into the Walpin trap when you talk about "strict adherence to the intention of the founders”. That, of course is the concept of “Originalism”, which I denounce in my response to Walpin. For many reason, including the one set out in the Preface of the book co-authored by Robert Bork entitled LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATECOMMERCE to which I refer in my post, that is a concept that has zero merit. Aside from the reasons mentioned in this book, the founders intentions have been radically altered by the 27 amendments to the Constitution, and to go by what their intentions were, is to ignore all these amendments. Let us remember, that the founders intended that slavery be part of our institutions, so that if we go by their intent, we must ignore the 13th, 14th, and 15th amendments, and accept the juridical maintenance of slavery.

Furthermore Justice Scalia, along with Thomas and Kennedy, have rejected legislative history as a guide to interpretation. See here at p.182 and what is a reference to a founder’s intent, but the use of legislative history. Legislative history on a document many times amended, is doubly absurd.

But I think you also fall also into the fallacy of equating both progressive interpretation of the Constitution with those who are interested in protecting, to quote from your comment, "the empowered elements of our society”. To understand that we have to look at how the 14th amendment has been abused. This amendment was intended to empower the newly freed slaves. Section 1 provides:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So whom did the Supreme Court choose to protect with this amendment in its earliest interpretation. The newly freed men? No! It was "the empowered elements of our society”. The Supreme Court in its first interpretation of the amendment in the The Slaughter-House Cases, 83 U.S. 36 (1873), chose to protect the rights of the "Butchers' Benevolent Association’ and set in motion the use of the amendment to thwart all social and labor legislation. Was that the intent of the authors of the amendment? Clearly, NO! But that is the  point of all this Originalism. It is insincere and phony and is never used when it doesn’t bring about the right result.

On the other hand to use the language in a manner that is appropriate to a modern understanding of its language, is the only approach that makes any sense. What “cruel and unusual" punishment was in the 18th century clearly is not what it means in the 21^st century.

Finally, Levenson had some concluding observations:

I agree with you that in the past Supreme Court Appointees have often surprised and disappointed the President appointing them.  I suspect that this is true with regard to Earl Warren, Cardoza, Brandeis, Stone and others.  I think you are also right about recent appointees who seem to remain faithful to their economic, political and social philosophies more so than those of the past. 

 What I did find interesting and what surprised me was your comments about efforts to limit the power of the court to declare laws unconstitutional. I was under the impression that Roosevelt's court packing was the only effort to combat the courts powers to declare a law unconstitutional.  On reflection, such ideas have merit. 

 Requiring more than a simple majority of the justices to overturn a law has the virtue of removing political considerations from their decisions except in the rare situation of a court almost totally appointed by Presidents of a single party.  With regard to treating Court decisions as a judicial veto, which could be overridden, I think this would complicate an already overburdened legislative process.  

Reality Check (Further Discussion)

On February 7th I posted "Reality Check!! (Discussion)" to my blog and it was distributed to subscribers that evening. In that post I first set forth my exchange on that topic with Albert Nekimken PhD of Vienna, Virginia, but in the second portion presented an exchange with Mike Cerrato Esq. of Westville, New Jersey. That exchange continued, but was not posted promptly because I felt the need to address "The President’s Second Inaugural Address." Both posts can easily be accesses by double clicking on their titles shown in bold above.

Now I would like to share with my readers the concluding portions of my discussion with Mike Cerrato. Mike wrote:

OOOH, you are making me think about this stuff. That hurts! 

I guess we are going in the same direction, but from slightly differing directions. Of course, I cannot disagree that the reality of what I will call capitalistic opportunism does not in any way come close to the horrors of slavery, I don't believe the mindsets of the opportunists are all that different than the slaveholders. The only difference is, I fear, degree. Only a little over a century separate us from the days when the chains were all too real to today, when they consist of those created by self-appointed masters of the universe who have constructed their more-figurative chains through the crony capitalist-supporting legal and economic systems which enable them to grab most of the pie while forcing the rest of us to fight over the scraps they allow to fall off the table. I cannot help but believe that, had today's robber barons been born in 1860 below the Mason-Dixon line, they would have been all too happy to own a few other human beings. 

I wholeheartedly agree with you, however, about the need to "balance the system."

My response is set forth below:

Thanks, for that compliment. If I can make my readers think, that is far more important than having them agree.

It is second only to giving them facts that they did not possess, and if in the process I slay a few myths, then I am having a very good day.

I am afraid that you are decrying the nature of the beast. Man, or should I say Homo Sapiens, to make sure the female is not overlooked, is and always has been a selfish species. It is the argument against Democracy, which is often referred to as the rule of the mob. It is why our founders created a Republic, and not a Democracy. They were a bunch of aristocrats, who didn't trust the people. That is why the President was to be chosen by electors, rather than the people. Why Senators to be chosen by state legislators and not by direct suffrage. The vote restricted to male property owners and not to others.

Over time we became a Democracy. Still an imperfect one, but a Democracy nevertheless. Many on the Right would like us to return to the Republic of our forefathers. Would our plutocrats of today enslave us if they could? I don't know? Certainly some would! Most I think not. It is irrelevant.

Homo Sapiens are what he/she are, and we have no control over that. It is only what system we employ that we can control.

You appear to be attacking the Capitalist system in all its forms. To that I say the same as I say about Democracy. About that I quote Winston Churchill, "It has been said that Democracy is the worst form of government except all the others that have been tried."

I have to say the same about Capitalism. It too is the worst form of an economic system except for all the others that have been tried.

Today every country that has any kind of successful economic system has a free enterprise system including, "Communist" China. The only variations are the degree to which the system is regulated and the extent to which the state has a hand on the tiller. Where socialist systems have been tried they have failed. We don't have to look at the usual straw men systems such as the Soviet Union to see that. The Labor Party in Britain kept nationalizing the economy every time they came to power. It didn't work. They gave it up.

There are very few instances of managed economies left in the world and they are all failing their people. Venezuela is a prime example. Well meaning, but a disaster. Uganda? Cuba? Well we can make excuses for Cuba because of our economic boycott, but the rest of the world trades with them. I don't think their failures, and I recognize they have some successes, such as good health care, can be blamed entirely on the US.

I am a lawyer like you, only I practiced on the international scene. I remember when India was a Socialist country anxious to keep out foreign capital. It didn't work.

What makes Capitalism work is the very fact that people are essentially selfish. We can't change that! We can only devise a system that takes advantage of that inherent trait.

Like sports, it depends on competition. Like sports, it needs rules, so that mere muscle and unrestrained power does not carry the day. Like sports it needs referees to see that the rules are enforced. Without these rules and the referees it becomes a fixed sport known as crony capitalism.

That is where the battle lies. We fight about the rules and their enforcement and leveling the playing field. To make, as I have said, false equivalencies about good and evil, and the inherent greed of homo sapiens, brings us no nearer to a juster society (and I will not speak of a just society, because there is no such thing). We strive, and the struggle endures; it never ceases. That is what it is all about!

Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. 

Reality Check!! (Discussion)

I posted my last commentary on February 4, 2013. For those who may want to re-read it, it can be found by double clicking on its title "Reality Check!!"

I received two comments in response thereto both of which led to exchanges. I want to share these with you.

The first came from Albert Nekimken PhD of Vienna, Virginia, whose reaction to my post was as follows:

Your skewering of Jindal was delicious and absolutely on target. Regarding the prospect of millions of new Hispanic voters, I was surprised that you didn't even mention the recent vote in Puerto Rico in favor of statehood. How long can Republicans ignore this fervent plea to join the Union (and add Democratic votes in Congress…)? 

As for gerrymandering of House districts, I continue to believe strongly that the only way to solve this is to amend the Constitution so that ALL members of the House are elected by a national constituency, as is the president. The current system is hopelessly anachronistic and, as you describe cogently, thoroughly sabotaged. A national constituency would have the corollary benefits of diluting the effectiveness of lobbyists and narrowly directed PAC money. It would force the creation of multiparty, national governing coalitions. 

Beyond that, you are absolutely correct in sounding the alarm regarding GOP efforts to change the electoral college system, which--whatever its faults--seems to be working as intended at present.

My response follows:

Not all agree that there is a fervent plea on the part of Puerto Ricans to join the union. See here. 

Quoting from CNN:

"In response to the second question, which asked voters to select an alternative, 61% of those who cast ballots chose statehood, but more than 480,000 people abstained from voting on that question.

They could have voted for statehood, if they had really supported it," said Maria de Lourdes Santiago, senator-elect for the Puerto Rican Independence Party, which supports the island becoming its own sovereign republic. "When you combine all the votes, statehood doesn't appear as the true winner in the second question about non-colonial options."

But it is irrelevant. Congress will never allow it. You may remember that when statehood for Hawaii and for Alaska was being considered it only became possible because one was considered Democratic and the other Republican. Without a balance it is not possible.

As for gerrymandering the solution does not require a Constitutional Amendment, and I think that your national House is neither a good nor a viable solution. The Solution lies in the Supreme Court striking it down as a violation of the Equal Protection clause.

In VIETH V. JUBELIRER the Court would not intervene because they could not agree on a suitable standard. But that is not needed. They don't have to agree what would be legal, only what is not. I think this is an issue where Kennedy could be won over and we might have the practice stopped.

A national House constituency runs in the face that smaller units need to be represented, something I agree with.

But I would favor doing away with mid-term elections. Let the House and the Senate be elected every four year to coincide with Presidential elections. Less time spent campaigning and raising money, and a larger and more representative electorate. If possible, state elections should be held at the same time too.

I do not favor multi-parties. They confuse the issues. 

Another comment came from Mike Cerrato Esq. of Westville, New Jersey, who opined:

I've gotten over their having founded their economic system on slavery several hundred years ago (after all, up until that time, everyone was doing it or had done it in the past) I just wish they'd stop trying to REINSTATE it for EVERYONE not earning over a half million dollars/year! But, then again, I always was a wild-eyed idealist.

This drew the following rebuttal from me:

I would not consider slavery as being an integral part of the founding of our nation as being relevant today, were it not for the fact that its influence pervades our culture to this day.

As for "until that time, everyone was doing it" is not accurate. Take a look here and you will see that the US was very late in abolishing it, as compared to most of the world, and no where else did it require a bloody war, to end it. As late as 1850 the US Congress passed the Fugitive slave law, and as late as 1857, the Supreme Court decided the Federal Government did not have the power to regulate slavery within the territories.

But the important point is that race has never ceased to be a major factor in our body politic. It did not stop being a factor even after the Civil Rights movement of the '60s and remains a major factor to this day, as I will discuss in a future post. This is a factor quite apart from the economic class warfare being waged against the middle and lower classes.

Which in turn drew these further remarks:

I don't know about it being "quite apart" from what is going on today. Oh, the suits are nicer, and the words more polished (i.e., "Right to work"), but it still boils down to a bunch of people who still think that it is right to steal another’s' labor, or at least get it as cheaply as possible and morality be damned as long as it gives us "Always low prices." As for the history you cite, all I can say is "American exceptionalism" indeed! As always, thanks for some enlightening information.

Drawing an extensive surrebuttal from me, as follows:

Here I must again take exception. Lower prices are as much a boon to those with little, as higher income. If there were a direct relationship between lower wages and lower prices, it might have some justification. Occasionally there is, but most of the time, lower compensation leads to more profits, which goes mostly to those who already have too much. But I have no quarrel with the Capitalist system that creates these motives, or with the people who take advantage of the system. 

           

I must caution against false equivalence. A system that tries to keep labor costs low is not in any way equivalent to slavery, and we serve both concerns poorly when we make such a false equivalence.

           

All I want is for the government to play its role in balancing the system. A fair minimum wage adjusted to inflation. A fair system of taxation where we get enough revenue from those who can afford it, so that government can meet the needs of the nation and promulgate regulations to protect the consumer, the worker, and the environment, while making sure the nation has the infrastructure and the educational system that keeps it competitive into the future.

           

It is indeed generational theft when we do not do the things that will make us competitive in the future, and destroy the environment in which future generations will be living.

           

But race is different. There is no profit motive when we incarcerate people of color for doing what white people do with impunity, or deny them the right to vote. That is innate to people needing to feel superior, when they have no other basis for it than color.

           

Note how our immigration laws have always, and continue to discriminate against people we deem inferior, whether first Chinese, then people of Eastern and Southern European descent, and now people from the South of us.

           

We, as a nation, suffer from a terrible case of xenophobia and fail to deal with our problems with cries of exceptionalism, which leads to a refusal to recognize our failures and to remedy them.

           

What has made this nation an exceptional one was our creation of a strong middle class, and an educational system that was second to none. This is not the fist time we have temporarily lost our way. We have always managed to right ourselves, often through sheer luck, such as when the reactionary McKinley died and the Reformist VP Teddy Roosevelt ascended to the Presidency. This ushered in a reformist era, when the Republican Roosevelt was followed by the Reformist, though racist Woodrow Wilson, though with the Taft hiatus. We then had the dark days of Harding, Coolidge and Hoover, only for the pendulum to swing the other way with Roosevelt, Kennedy and Johnson, and would have continued in this vein if the Left foolishly had not turned on Humphrey, prolonging the Vietnam war by eight years, by ushering in Nixon, whose policies, domestically, really weren't so bad, but who with his Southern strategy, based on race, ushered in the Reagan era, which we are only now recovering from, albeit with great resistance.

Comments, questions, or corrections, are welcome and will be responded to, but will not be distributed, because events are moving too fast and my posts need to keep up.