Thursday, January 26, 2017

The Coming Battle

Since the election, I have been doing something that has changed my life.  Instead of trying to just guess what the other side was thinking, I have engaging in spirited discussions with people who
disagree with me.  The reason for this is simple - to be intellectually honest, a person needs to be able to make the case for what he or she believes. That is central to my Christian faith which tells us in 1 Peter 3:15:  "But in your hearts revere Christ as Lord. Always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have. But do do this with gentleness and respect".  There has been a general lack of that kind of thinking in people's lives, particularly the "gentleness and respect" part, and I freely admit that I have been as guilty of this as anyone else.  Most people who bother to consider philosophy, religion, or politics tend to operate in the infamous "bubble" of the like minded.  When differing views are considered, if they are considered at all, their arguments are constructed in such a way that our way of thinking easily prevails.  Yet as Han Solo famously observed, "Look good against remotes is one thing, but against the living - that's something else".  In bubble world, it is easy to think we have everything figured out.  When we actually have dialogue with the living, it IS something else.

I have had many conversations with thoughtful Christians throughout this election cycle, and there was a great deal of ambivalence about President Trump.  Some, like my own son who is studying for the ministry, thought that President Trump's significant character flaws precluded their support.  On the one hand, folks like myself argued that though the candidate was flawed in many ways, the issues he represented absolutely needed to prevail. A case in point in this thinking was the Supreme Court appointment hanging in the balance, so with that battle days away from beginning, I thought it would be a good time to bring it up.

The reason for my making this issue such a key part of my vote is that there are two competing legal philosophies in play: strict constructionism and legal positivism.  The notion of legal positivism is that laws should naturally evolve as society's standards change.  If legislatures are too slow to act, then it becomes the responsibility of the judicial branch to find rationales for modifying existing laws to conform to the new standards.  Not so say the strict constructionists.  Laws are written by legislatures and the purpose of the judiciary is to interpret laws in the spirit they were written.  The Constitution has a deliberately difficult process to modify it for a reason, they say, and that is because we cannot change laws based on lasting principles to conform to passing fads.

Ruth Bader Ginsburg is an example of a justice who is a legal positivist.  Here is a quote illustrating what judges should be about: "I thought, well maybe the law could catch up with changes in society and that was an empowering idea".  Ginsburg was not the first Supreme Court Justice with this philosophy.  Oliver Wendell Holmes said much the same thing almost a century earlier.  Holmes rejected the idea of the law as a moral teacher and instead, as a philosophical pragmatist, thought the law should be based on practicality instead of concepts of right and wrong.  He did not believe in a transcendent source of morality and therefore thought it was up to the community to determine its values and standards.  He also believed that the law should be ever morphing to keep up with these evolving standards. He scoffed at the idea of legal precedent having sway over the current views of society saying, "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV".  This philosophy allows for laws to be reinterpreted from their original meaning into what judges determine is an equivalent view of modern culture. 

Justice Scalia,  on the other hand, was a strict constructionist. He believed that laws were made with specific purposes and that they should be interpreted in light of their "original intent".  Under this philosophy, if society's values have in fact changed, it is the responsibility of the legislature to pass new laws, and it is wrong for the judiciary to act to make new laws when their constitutional role is to interpret them.  Also, as appointed officials, they have less credibility in this role because legislatures, presumably represent the views of the people more closely since they are directly elected.  If they are reluctant to modify or pass new law, that means that societal views are not as clearly defined as some might think.   

 In these two philosophies lie why the battle for the soul of the Supreme Court is viewed by both sides as vital.  To the liberals, legal positivism allows them to bypass legislatures and achieve recognition of laws that sometimes are against the will of the people.  The Equal Protection Clause of the 14th Amendment, which was passed with the intent of preventing southern legislatures from restricting the freedom of the newly freed slaves, is their tool of national enforcement.  Thus controversial issues like abortion and gay marriage, which may agree with overarching philosophy and sensibilities of some states but not others, become a one size fits all for all 50 states because they are held to be non-discretionary issues of basic liberty.

Conservatives counter that we are not a one sized fits all country, and that the 10th Amendment which says that all laws not specifically spelled out in the Constitution should be reserved to the states to regulate.  For example, California and Kentucky have very different philosophies, and the laws about how we live should be free to acknowledge those differences.  So we want judges who respect this notion instead of attempting to impose their personal philosophy as normative and then forcing everyone to go along, even when it does not reflect the values of many communities.

For me, Trump's pledge to appoint justices with the constructionist philosophy was a decisive reason for voting for him.  The death of my favorite justice, Antonin Scalia, created a conservative hole that I did not want to be filled by a liberal replacement.  Republicans have never successfully "Borked" an appointee to my recollection.  Instead they usually adopt the philosophy espoused by Bob Dole during the confirmation of Justice Ginsburg that "the President is entitled to his choice".  Mitch McConnell's refusal to hold confirmation hearings on President Obama's choice of Merrick Garland to replace Scalia therefore came as a complete surprise to me as we usually do not see such behavior in establishment Republicans, It was a very risky thing to do and, quite frankly, I think it was the wrong thing to do from a Constitutional standpoint.  But as a political move, it was brilliant.  It turned the national election into a national referendum for the direction the court would take.  Since Garland was deliberately presented as a more measured nominee, this was also rolling the dice in a big way with a "winner take all" outcome.  I was very surprised that Democrats did not make more fuss about it at the time, but then again they fully expected to win the election and then be able to appoint a candidate more in line with their own philosophy instead of a compromise, so they played along.

Making the presidential election a national referendum was probably the main reason that prominent evangelicals were enthusiastic about Trump instead of offering tepid support.  The Supreme Court, unrestrained and unaccountable, is the dream of the side whose view it reflects and the nightmare of whose philosophy is not represented.  So McConnell's plan certainly worked as intended in my case. I therefore eagerly await the announcement of who the nominee will be.  So far President Trump has honored his campaign promises and delivered on them, and I am very happy to see the no-nonsense approach with which he is moving out with his agenda.  I expect his candidate for the Supreme Court to be no different.  Now if he would only stop tweeting!

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