I found Emily Bazelon's NY Times review of Barry Friedman's book about the US Supreme Court, The Will of the People, interesting. She seems to concur with the notion that it is OK for the Supreme Court to align itself with popular opinion over time. Perhaps I am misinterpreting that, and I do not disagree that happens, but it should not be the defining OBJECTIVE for the Court.
Lately there has been a lot of sturm und drang over the issue of expansion vs. contraction of individual liberties. I was watching a recent TV show about the issue of "gay" rights and was reading about it in the paper, too. Going through the courts in Texas now is a case concerning a gay couple married in Massachusetts seeking a legal divorce in Texas where they now live. Gov. Rick Perry and Sen. Kay Bailey Hutchinson are OPPOSING the divorce, thus seeking to force the gay married couple to remain married in Texas, where gay marriage is otherwise illegal. The ironies abound. Perry and Hutchinson say the Texas constitutional provision limiting MARRIAGE to "hetero" men and women prohibits the Texas courts from taking up a divorce action. The trial court rejected this argument, saying that it was a denial of equal protection, but the Texas Attorney General has intervened and is appealing.
Given that ALL states have ratified the US Constitution, I fail to see how any state can now assert a POWER over any person in the US (citizen or not) to deprive him or her of equal protection and due process of law, REGARDLESS of sexual preference. Legally recognized marriage is a state civil proceeding subordinate to the US Constitution, though it might also be a private religious proceeding free of such legal considerations. However, many secular "rights" and privileges pertain to married couples that mere "partners" don't enjoy, like joint tax return filings and attendance at medical bedsides. I think that homosexuals already have a right to civil marriage, same as any other person. I don't think a state can prohibit two unrelated consenting adult humans wishing to marry, and I don't think the Constitution needs any amendment, UNLESS the US Supreme Court fails to properly enforce the Constitution, as it so miserably failed in KELO vs. NEW LONDON, the eminent domain case that has everybody clucking. I decided to actually look up and read the KELO case. Justice John Paul Stevens wrote the majority Opinion, and he based it on an earlier Supreme Court decision allowing the seizure of private property on the island of Oahu in Hawaii, the MIDKIFF case.
Now, no one who has EVER expressed an opinion about KELO to my knowledge, orally or in writing, has EVER mentioned MIDKIFF. MIDKIFF flew completely "under the rader" when it was decided. Nobody raised a stink then, and it involved approximately the IDENTICAL issues that the KELO case presented. So, I read MIDKIFF, too.
It could be argued that the KELO majority were EXACTLY RIGHT to assert that the judicial precedent of MIDKIFF was controlling. It held it was OK for government to seize private property and turn it over to other private interests (paying "market value" for it, of course), SO LONG AS a public PURPOSE" was being served. MIDKIFF involved the State of Hawaii breaking up what was described as an "oligarchy" of private ownership of land on Oahu, where only 10-15 families owned about 75% of the island. So, the ownership of those lands was forcibly redistributed, and the US Supremes said that was a permissible use of the "takings" clause (5th Amendment).
The logic used by the majorities in both MIDKIFF and KELO sought to equate that wishy-washy "public PURPOSE" with the express constitutional standard of "public USE." I personally think the Founders were literate enough to have known the difference, and I think they did not use "purpose" on purpose! Unfortunately, that does not prevent modern-day semi-literates from trying to "improve" on their works.
So, in KELO, not a single alleged "liberal" on the Supreme Court voted to protect Mr. Kelo's home from being seized by the City of New London, Connecticut and being torn down for a PRIVATE (not "public") "redevelopment" project that never got built! They all outvoted the alleged "conservatives," and Mr. Kelo lost his home.
Ironically, one of those "conservatives," Justice Clarence Thomas, sided with Mr. Kelo and said that MIDKIFF was bad law and should be overturned. I agree with him, though that's probably the only time I will likely do so!
This absurdity was nullified by many legislative acts later on.
One of the most trifling, reprehensible acts ever committed by President George W. Bush concerned his support for amending the US Constitution to prohibit gays from getting married. As a TV speaker noted, it was the first time in the history of our country (other than, arguably, the institution of Prohibition) that the amending process had sought to take away rights rather than to expand them. Over the years, the Supreme Court had become ever more hostile to personal liberty. Until Ronald Reagan became President, there was a pretty solid history of expansion of personal liberties and of secular government. Not anymore, and that, to me, is the telling aspect of the evolution of constitutional interpretation. Retrenchment of personal liberty is unbecoming to the United States of America.
Justice Antonin Scalia has been in the news lately regarding the case of the war memorial cross out in the Mojave Desert. He said on "First Monday" [October 5, 2009] during oral argument that, amazingly, he did not see that cross as being some overt Christian symbol, that it was "merely" a war memorial, no big deal. The Jewish lawyer for the ACLU said he'd been in some Jewish war-dead cemeteries and had seen no crosses there, and Scalia got pissed off! He sarcastically noted that it was impractical to create some hodge-podge amalgam of religious symbols as proper memorials, so why not a "mere" cross? How could ANYBODY object to that? Scalia, being the arch-conservative intolerant bigot that he is, fails to consider the OBVIOUS solution, to put up a secular-type memorial instead, such as an obelisk, which happens to be an ancient Egyptian religious fertility symbol abstracting a penis!! (Maybe Scalia does not like obelisks because they imply him being a dickhead!)
I find Antonin Scalia to be a Wrong-Wing, hyper-Catholic bigot. However, he may well be the smartest Justice on the Court, but he is a pernicious, evil influence thereon. He thus gives credence to the observation by Bazelon that "judicial review [may well] alter the meaning of the Constitution...." Though John Marshall observed in MARBURY vs. MADISON that the Supreme Court says what the law "is," I have always wanted to believe that the Court did not change the meaning of the Constitution so much as to change people's notions of what it says and means, but Scalia tries my patience! (So did Sandra Day O'Connor!)
There are now five devout Catholics on the Supreme Court: Scalia, Roberts, Thomas, Kennedy and Alito. I think this was intentional on the part of "alleged" conservatives who put them there, and it is very dangerous. Only Kennedy (now considered the "center"!!) seems to have any inclination to preserve civil liberties. The rest usually will back the state against the individual most any time (though some did not do so in KELO).
As I have ranted many times, the 10th Amendment (the so-called "states' rights" amendment, a phrase and concept that appears NOWHERE in the US Constitution) recites only acknowledgment and allocation of LIMITED powers for the United States; the 9th Amendment recites that there may well exist other RIGHTS besides those enumerated in the Constitution. It seems to me that, analogous to Werner Heisenberg's "Uncertainty Principle" regarding quantum energy states (momentum) and quantum matter states (position), a power and a right cannot occupy the same legal "space" at the same time, so powers must ALWAYS defer to rights, as the latter preceded the former in time and importance, according to most of the Enlightenment thinkers. We in the US celebrate the notion that the government's democratic POWERS are derivative of the RIGHTS of the people who, as individuals, have collectively chosen to be so governed. I shall, henceforth, refer to this as the "MannyBoyz' Certainty Principle"!
Bazelon observes that there is an "argument that judicial review is bad for democracy." I think too many people nowadays obsess about the US being a "democracy," implying that the majority is always right and can do whatever it pleases. The Founders were smart enough to create not an out-and-out "democracy" but a republic based on democratic principles, thus forcing the majority to assert its will through a layer of representatives with minds of their own, sworn to support the Constitution, but SUBJECT TO limitations on the power of the majority to enforce its will on "lesser" beings. An unelected co-equal branch of government, the judiciary, serves to check the power of the majority which controls the other two branches of government, by enforcing those checks and limitations. Unlike what George W. Bush seemingly thought, "democracy" is not an end unto itself but is merely a tool to be used to enable our manner of governance. I think that is a critical distinction that is lost on too many people. Sometimes, the majority does NOT get to do what it wants. Thankfully. The idea that the majority might be so limited is anathema to a lot of ignoramuses.
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As for Alan Dershowitz's review of the thus-titled book about Supreme Court Justice Louis Brandeis by Melvin Urofsky, it is hard for me to read anything written by über-Zionist Dershowitz and not start foaming at the mouth. He is utterly repugnant, even when I agree with him! I wonder how much Brandeis, a self-proclaimed Zionist, would approve of Zionism today if he could witness what is now going on in the West Bank. I am just amazed that Israeli Prime Minister Netanyahu and the Likud have once again assumed power in Israel, though they do not now enjoy the support of a clear majority and must make coalitions with other interests.
I know very little about Brandeis, but I do believe that there is a paucity of "mere" lawyer representation on the Supreme Court. Way too many people and politicos and pundits believe that one must have judicial experience to be on the Court. I think Lewis Powell was the last pure lawyer on the Court, but he was a "corporatist" suspect, I am sorry to say. He did live to regret his decision upholding the Virginia "crimes against Nature" statute against homosexuals, not that his ex post facto regret served to end the hate and discrimination against homosexuals. Thurgood Marshall also made his reputation primarily as a lawyer, and he was the last (& only recent) justice to have defended a death-penalty case as a lawyer. We have too many judges on the Court as it is. We do need more lawyers thereon.
I would hope that a lawyer of Brandeis's stature who gained a position on the Court these days might be an aggressive defender of civil liberties, but given the current complexion of the US Senate, with worthless, invertebrate piffle like Virginia's Mark Warner there (self-described "raging moderate"--ha-ha), I doubt we shall see any counterbalance to Antonin Scalia's fascist influence anytime soon.
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