Tuesday, June 28, 2005

The Court's Image Coup

The Supreme Court of the United States has a great advantage that deflects some criticism of its excesses. To explain what I mean by that, I'll explain a bit about the Constitution.

The Founding Fathers never had any taste for democracy. That is, the direct rule of the people without any restrictions was not an ideal to be achieved or striven for but a state of majoritarian tyranny to be avoided if at all possible. When the people have the power to enact any legislation or to annul any previous act at each legislative session, the people have free rein to do whatever they will. Now if this body of citizenry can be counted on always to keep in mind principles of equality and justice, there is no danger in allowing absolute power to be wielded by the people at all times. The fact that this power is absolute ought to sound a warning to the careful reader already. The fascist and Communist dictatorships of the 20th century still stick in our memories, and we are quite ready to condemn absolute power when it is held by a single dictator, or a small council of oligarchs. What many of us may not realize is that the possession of absolute power by any group, even if that group constitutes a majority, is dangerous. Direct democracy without any restriction is as potentially dangerous as any fascist dictatorship.

Now what I have shown is that the Founders feared democracy not because they feared allowing the people to be sovereign. On the contrary, the idea of the American Revolution was to return sovereignty to the people and to allow them to govern their own lives. The Founders simply realized the wisdom of restricting the power of the people so as to ensure that a majority could not decide to restrict the freedoms of the minority. The mediation of popular sovereignty through a representative (republican) form of government instead of the direct rule of a pure democracy was one method of limiting the power of the people - but for my purposes here, that aspect is not so important. What is important was the adoption of a Constitution.

The Constitution of the United States was a document embodying rigid principles for regulating the operations of American republican rule so as always to defer popular rule to the rule of law. This method makes sure that justice and not the sometimes-fickle will of the people would be (ideally, if not always practically) the standard of government. The Constitution is rightly revered because without it, our government is susceptible of all the injustices of majoritarian tyranny.

The Supreme Court has taken it upon itself to be the final interpreter of this Constitution. The Supreme Court therefore has set itself up as the embodiment of justice and law-governedness against the whims of majority rule, when majority rule becomes oppressive and unjust. Whether or not the Court consciously adopted this reputation throughout its history so as to bolster its legitimacy is irrelevant. Whatever the origins of the view, the image of the Court is as a champion of justice and equality, disinterestedly deciding cases based on principles of law indifferent to particular interests.

However, when the Court becomes activist, as it has been for decades, then it is no longer offering interpretation of a rigid body of agreed-upon principles but reading the private interests of its members into the Constitution. Those political views are superior to the law of the land, and the Court thereby becomes an oligarchical body deciding cases and striking down laws based not on law but on preference. The Court's members may be more well-educated than most citizens, but in this country at least I do not think that entitles them to possess such a large share of sovereignty entirely on their own, without any higher recourse if they are unjust in their decisions.

But the Court's image is not one of a body of aristocrats deciding what is best for their subjects regardless of the expressed interests of those subjects. Rather, the Court is still viewed, as I mentioned before, as a neutral arbiter of law. This is because the Court insists on finding Constitutional interpretations that will fit with whatever view the Court happens to wish to take.

In summation: the Court is not neutral, and has robbed the people of much of their sovereignty, and is acting as an unaccountable body of oligarchs - yet for all this, the line we hear from high school teachers, college professors, and the media makes us think the Court is simply the humble servant of the Constitution.

Maybe the fact that they took away your right to own property will indicate otherwise?


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