Because You Never Asked

THE END OF DEMOCRACY REVISTED

(12/11)

     It’s been 22 months since I wrote my first essay on perhaps the greatest judicial error since the days of slavery, that being the now infamous “Citizens United” case (see essay, “2010: The End of Democracy”). This is the case where the United States Supreme Court, in a 5 to 4 decision, ruled that any laws attempting to limit the amount of money any person or corporation can contribute to a political candidate is unconstitutional. The decision is based upon the premise that corporate money contributed to a candidate is akin to the free speech guaranteed in the Constitution. In a political system that is failing due to the dominance of moneyed interests, this is something like trying to cure lung cancer by smoking cigarettes.

     As the months have gone by and the political punditry class of American media continues to wrestle with the ramifications of this decision, I find something terribly lacking in their analysis, especially amongst those who are justifiably outraged by this ruling. They are not getting to the pith of the matter, to the reason why this decision is such a threat to the democracy so beautifully constructed in the Constitution. Sure, we get it; these huge sums of undeclared political contributions are co-opting the electoral process. True, this is bad enough, but it is not the worst aspect of Citizens United.

     What makes this ruling so prejudicial to our whole idea of democratic governance is the following: the conservative judges responsible for this fiasco are acting in a political way, not a judicial way. This is a frontal attack on the checks and balances envisioned in the 3 branches of government, a system meant to diffuse the concentration of power in too few people. I find very little discussion of this by our most renowned political pundits.

     Someone’s gotta do it.

     I will now prove this to you, using a set of circumstances our political pundits are failing either to enunciate clearly or put forth at all, something I touched upon in the “End of Democracy” essay. Given the skeletal, or even inexistent treatment of the subject, I feel the need to further expound upon these neglected circumstances. By so doing, the spectacular hypocrisy of these conservative judges will become evident, a hypocrisy that can only lead one to believe they are acting more like politicians than judges.

     The first thing that must be established here is that these conservative judges refer to themselves as “strict constructionists” of the Constitution. It is relevant to note this label is not hung on them by others, but self proclaimed loudly. This means, according to THEM, that they do not like anyone taking liberties with the exact wording of the document, that no one should read things into the Constitution that are not exactly set forth therein.

     Fine. Let’s apply these principles to an actual Supreme Court ruling.

     Roe v. Wade, like Citizens United, is a landmark decision in American jurisprudence. It granted women their constitutional right to terminate a pregnancy --- or, more specifically, it ruled unconstitutional any law meant to take this right away. Before getting into the reasons used to come to this decision, it must be emphasized that a judge hearing this case was not ruling on whether or not an abortion is a good or bad thing, a moral or immoral thing, or anything else having to do with how one might feel about such an action. The judge’s personal feelings should not enter into the decision. The only thing being decided in Roe v. Wade is if a law denying a woman’s right to control her own bodily functions is permissible under the Constitution.

     But let’s also be realistic. Judges are human beings, which means they have concepts of right and wrong, good and evil, and, like the rest of us, a world view in general. If you are a good judge, you should fight these tendencies when trying to apply the law objectively, even if you do not like the law. But, as we’ve said, humans will be humans.

     I am a person who believes sincerely in a woman’s right to choose. If I had sat on the court that heard Roe v. Wade, I’m sure I’d have looked for something in the Constitution to justify that stance. However, even if I did not consider myself a “strict constructionist” in the conservative sense, I’d certainly limit my roaming to something very plausible in making the case for a woman’s right to choose. If I could not find that plausible justification in the document, I would go against my own personal feelings on abortion and rule only within the meaning of the Constitution. This is how any judge should go about their business.

     Fortunately, for a pro-choice person, that plausible connection could be found in the form of the “right to privacy” even though the Constitution does not specifically speak of such a right. The vehicle used to reach this conclusion was the 9^th amendment, which says that any other rights not clearly enunciated in the Constituion will not be denied simply for that reason. The Supreme Court justices that gave the pro-choice stance its victory in Roe v. Wade, felt a woman’s constitutionally guaranteed “right to privacy” was being denied her if she could not terminate a pregnancy. Be one pro-choice or pro-life, it is hard to deny there is some nexus between the idea of privacy and a woman’s ability to control her own bodily functions (I repeat that phrase because it seems to get to the crux of the matter). Indeed, any society that believes in private property must, it seems, also have deeply ingrained feelings for the idea of privacy --- and what could be more private than one’s own control of your body?

     But for the conservative judges, the self proclaimed “strict constructionists” (who, by the way, are all pro-life), this “right to privacy” linked to a woman’s right to choose is an unforgivable stretching of the Constitution’s meaning. It is reading something into it that is just not there. They dissent!

     Fine. Even if I feel the ruling in Roe v. Wade is a correct one in a purely constitutional sense, the “strict constructionists” have their point of view and if they stay consistent, I can respect that.

     They’ve lost my respect.

     Fast forward to 2010 and the Citizens United case. The problem of money in our political system is obvious. Quite logically, in an attempt to have a democracy with some resemblance to the word, legislative bodies are propagating laws meant to limit campaign contributions, especially from corporations, where the real money is. These laws are soon challenged as an impediment to the “free speech” guaranteed us all in the Constitution (I know, it’s hard not to laugh --- or cry). Citizens United will decide this issue.

     Unlike the days of Roe v. Wade, the conservative “strict constructionists” now have a majority on the court. They have all been nominated by conservative Republican presidents. Although, theoretically, this should not influence their decisions, they are, if not card carrying but in their hearts, Republicans. Republicans like money in politics, even more than the Democrats. Regardless of your cynicism with regard to both Parties being involved in this money game, the truth is this: Republicans still work for the wealthiest elements of our society; Republicans find easier access to the largest sums of money than Democrats do, especially at electoral levels below that of the president; Republicans want unbridled access to this money, something that, in the long run, would prejudice their opposition.

     It must be reiterated that what is being decided in Citizens United is not whether you like or dislike money in politics. For a Supreme Court justice, that should not be the issue. The only thing a judge should be thinking about is if a law restricting money in politics is permissible under the Constitution.

     So here we go. When the dust has settled the conservative “strict constructionists” give victory to the moneyed interests by ruling all these laws limiting campaign contributions are unconstitutional. Why? Because money is a form of speech.

     What?!!!

     Not only that, but corporations, through their money, have this right to free speech.

     What?!!!!!

     Here they are, these self proclaimed “strict constructionists”, the same guys who can’t find a close enough connection between the “right to privacy” logically arrived to in the Constitution and a woman’s right to choose, now creating this tortured, Byzantine metaphor which makes corporations giving campaign dollars in the millions a form of free speech!

     Where does it say anything resembling that in the Constitution?

     Case closed. Such hypocrisy can only lead to one conclusion: these conservative judges are politicians not jurists. They are acting politically not judicially. They are “strict constructionists” only when it suits their political agenda. This is a serious breach of protocol, one that destroys the whole concept of the democracy so elegantly laid out by The Founders.

     There are many good people in our media establishment protesting strenuously against Citizens United and its adverse effects on American democracy. They have even set in motion the embryonic first steps towards a constitutional amendment allowing restrictions of money in politics. I’m not against such efforts, but it puts focus in the wrong direction. It is a surrender to flagrant judicial malfeasance. Our Constitution can clearly accommodate restrictions of money in our political process, but a few conservative politicians masquerading as judges have blown up the system. Their hypocrisy is obvious. They’ve been caught red handed. Anyone with a camera or microphone in front of them; anyone with a political column in any publication or blog, should be hitting hard on this. If these conservative judges are going to act like politicians, they should be treated like politicians. A constitutional amendment that is really not necessary would set a bad precedent. It would let the villains off. It would legitimize politics in the judicial branch. It would mean anytime a politician masquerading as a judge makes a ridiculous, politically motivated decision, we’d have to amend the Constitution.

     That is unacceptable.

     Post Script: Quite coincidentally, one of the most pompous fools in American political history, Newt Gingrich, recently suggested that judges making silly or politically motivated decisions should be called before congress to explain themselves, or even be arrested! This is another way of destroying the wisdom of our Constitution because it would make judges dependent on the approval of politicians to survive. Judges must be able to act independently of such pressures if their role in our society is to be fulfilled. What I am suggesting is media sources calling them out stridently for blatant transgressions of their judicial role. They should at least be judged in the court of public opinion for these politically inspired decisions and it is media’s role to make these things understandable to the average citizen.

     It is ironic that clowns like Newt Gingrich and his conservative bedfellows have been the most vociferous policemen in pursuit of “activist” judges who bend the law for their own political purposes. And yet, the Citizens United case is the strongest case for such criticism in my life time. If Newt was not the mega hypocrite he’s always been, he should be calling for the arrest of justices Scalia, Thomas, Roberts, et al.        

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Email: JerryG@postcman.info