It’s Alive!
Posted by Thomas L. Knapp on Jul 17, 2009 in Commentary • 2 commentsThere are few certainties in life, but one of those certainties is this:
Unless Sonia Sotomayor pulls out an Uzi and sprays the US Senate’s chamber with it, or gets run over by a bus outside that chamber, she will be confirmed as the US Supreme Court’s newest Associate Justice.
The “hearings” on her confirmation to that appointment have nothing whatsoever to do with the appointment or the confirmation, really. They’re just a demagoguery opp, a mating ritual as vivid and bizarre as anything you’ll ever see on The Discovery Channel. The Senators are peacocks strutting their plumes, apes beating their chests. The object of their visible affection isn’t Sonia Sotomayor — it’s you, in your role as prospective campaign donor or voter.
Like all such rituals, this one includes pro forma elements: The Senators invoke buzz phrases (”strict construction;” “original intent;” “judicial activism;” “living document”), then posture for the public in certain ways depending on how Sotomayor responds to those phrases.
Over and over, in so many ways, she must be induced to state that her dearest wish, her goal in life, is to “apply the law to the facts.” When she so announces, Democratic Senators respond with self-satisfied smiles, Republicans with raised eyebrows signifying disbelief, each the better to arouse the constituencies with which they hope to mate (or, more cynically, which they hope to screw).
In truth, given the size of the Democratic majority, only one question ever stood between Judge Sotomayor and confirmation. Her answer to that question — “will you at all times and in every respect proclaim and uphold the legitimacy of our power?” — was known long before the hearings began, else she’d have never been appointed in the first place.
But back to that mating ritual. I’m less interested in its participants than in its shibboleths:
“Original intent” and “strict construction” are fine, high-sounding concepts, and often useful ones even to anarchists, if only for the purpose of invoking adherence to rules which are allegedly binding on the state. I’ve yet to see the judge who pays them much heed in practice, however.
Even the most famous living advocate of “original intent,” Robert Bork (you saw him in a previous season of the show; he withdrew in the face of a less friendly panel) discards the whole concept without a second thought whenever it threatens to impose what he accurately describes as a “libertarian theory of jurisprudence.”
As for “strict construction” … well, let’s just say that anyone alive the last time the interstate commerce clause (to offer one major example) was “strictly constructed” by the US Supreme Court is now dead or at least very, very long in the tooth. As of the last time I looked (Gonzales v. Raich), even the most “conservative” justices agreed that Congress’s power to “regulate interstate commerce” extends to matters which are neither interstate nor commercial.
“Judicial activism?” A meaningless phrase, general used as a pejorative. Of course judges “act.” They judge. Their judgment is generally only construed as “activist” by politicians whose own “activism” has been impeded by it.
From the foregoing, it should be obvious that the Constitution is, in fact, a “living document,” reinterpreted at will for more than 200 years now whenever such reinterpretation has been required to support the desire of politicians to maintain a firm grip on, or extend the scope of, their power.
Could it really be any other way?The Constitution was written to provide minimal central governance for an agrarian and pre-capitalist mercantile society of 3 million, spread over 13 sub-polities clinging to the eastern seaboard of a continent.
As the population grew toward 300 million, scattered in 50 sub-polities over that continent and then some, “central” continually gained on and then surpassed “minimal,” in no small part due to the power of interpretation of the Constitution becoming vested in a Supreme Court located at, and appointed by those in charge of, the “center.”
Whether or not the game was intentionally fixed is debatable; that its outcome was fore-ordained should be obvious. The Constitution is indeed a “living document,” kept in a cage, fed a high-fat diet and occasionally trotted out for ostentatious public display. As a guarantee of your rights, it has become less than meaningless — its sole function these days is to legitimize your subjection.
Put not your trust in princes? Sure thing. Neither put your trust in constitutions, nor in the political appointees hired (by those in power) to “interpret” those constitutions.
On the commercial angle, you are of course correct – although some scholars claim that the Commerce Clause was intended as a catch-all.
The only way out our regulatory society is self-regulation and the only way to achieve that is solidarity (to use Catholic social theory terminology). As long as labor and ownership are separate there will be friction which will demand an aribter. As long as owners collude or are large enough to control the labor market so it is not free, there will be aggreived employees who will call out for government. As long as there is concentration in the market for goods and services (think Wal-Mart and McDonalds, AT&T, Verizon, etc.) which is at least characterized as Monopolistic Competition if not Oligopoly, there will be both aggreived consumers and corrupt politicians.
We can’t use government to force solidarity, however government can begin to encourage it by winding down the Social Security system into a system of Personal Retirement Accounts which allow workers to own and control their workplaces – most especially the ones that are concentrated. For the small business with one owner and one or two employees, this is not so important, provided the owners don’t or can’t use their small size to bottom feed for employees and summarily short them on compensation and benefits, especially if they themselves are doing well economically. If those at the bottom were effectively elevated out of it, of course, the market could be relied on to assure that employees are not exploited – although that is a big if. Creating structures outside of government that raise up all the poor would be essential to ease up on benefit programs for the poor and for less abled workers. As for using the power of the state to systematically turn state-assisted oligopolies into employee-owned firms with a natural incentive to become schismatic (due to clashes of personality at the top) – I can find no freedom based objection – because the markets these firms are operating in are not, per se, free – either on the sales side nor the employment side.
On the non-economic side, I am actually more encouraged by a “living constitution.” It was the intent of the framers (Madison) to actually put in a check on state power over the press and freedom of conscience, although the Senate stopped it from going into the Bill of Rights. Fessenden and company eventually put in such checks as part of the 14th Amendment and they were effective until party politics led to the withdrawl of federal troops from the South. Quite a bit of behavior then occurred in violation of the intent of the framers of that amendment and the 13th and 15th Amendments – for example the doctrine of separate but equal and the evenutal enactment of Jim Crow laws, the misuse of the “conviction” clause in the 13th Amendment to convict black men and boys on trumped up charges so that they could be reinslaved – sometimes by corporations such as US Steel, and the use of poll taxes and literacy tests to keep black men from voting. It was only in the middle of the 20th Century that active usurpation of these amendments was ended by so called “Activist Judges.” Anyone who thinks that ending that usurpation is somehow against the intent of the framers can suck my left nut.
Now, there has been a healthy expansion of the principles of those amendments, albeit incomplete. For example, working in a less than free market for labor could be regarded as a form of involuntary servitude. Simply removing government from the equation won’t make the market for labor any freer, except for those employers who seek market power. Any who think that the labor market is entirely free can take an appointment to suck my right nut. The expansion of the protection of law to other groups is also within the spirit of the framers, especially for women (who as an organized movement supported the 14th and 15th Amendments, even forgoing the vote to do so), Latinos and homosexuals. (I have something else for those who disagree to suck).
Is it tyranny to stop personal actions of tyranny – especially those undertaken under the ruberic of state power (such as amendments attempting to prohibit gay marriage when there is no rational basis to do so)? I think not. (Oh, and as for marriage, some legal recognition of gay unions are necessary – if only because law and social relationships set up rights for families of origin absent marriage by an individual – gays should have access to the same liberation from their families of origin – until the wishes and rights of families of origin are always disregarded in favor of whoever one is domiciling with or even just fucking -some kind of official recognition of marriage or partnership is essential for both straights and gays).
Oh, as far as housing and restaurants – if you are open to the public you must be open to all of the public. If you are giving away free housing or free food, you can chose who you want to give your largesse too. However, the market is not largesse (and if it is, it is not a free market). Free dealings mean sex, religion or who you sleep with cannot be a factor in the negotiation process.