Posts tagged with Supreme Court
The ruling in the same sex marriage issue before the Supreme Court will indicate whether the United States is still a democracy or has become a judicial oligarchy. In a democracy, elected officials decide major social issues like how government will treat the ancient mating practice of marriage. In a oligarchy, non elected officials dictate policy to elected officials based on their personal views.
One of my favorite movie quotes is from "The Teahouse of the August Moon". Glenn Ford plays an American officer attempting to explain democracy to the Japanese after World War II. He says, "democracy is where the people have the right to make the wrong decisions." The statement is the essence of democracy. If elected officials make the wrong decision on behalf of the people voters can rectify the situation by electing replacement officials to make the right decisions. If non-elected officials make the wrong decisions the people have no recourse other than overthrowing the government.
People don't become infallible just because they hold a high government office even if they are absolute monarchs who have supposedly been chosen by their deities to run the government. Those of us who are familiar with the history of the Supreme Court known that it is extremely fallible. The Supreme Court has made some extremely bad decisions, particularly.when it has gotten involved in social issues with decisions involving social theories rather than law.
The decision in Dred Scott v. Sanford is easily the worst decision in the history of the Supreme Court. The Court attempted to use the case to deal with the divisive social issue of slavery. Chief Justice Roger Taney's ruling inflamed northern public opinion against slavery which many northerners regarded as immoral. The decision insured that slavery would be a major issue in the 1860 presidential election. The decision didn't cause the Civil War, but provided the catalyst to turn the controversy over slavery and broader economic issues into a war.
The 1896 Plessy v. Ferguson decision is the Court's second worst decision. The Court's acceptance of the questionable social concept of "separate but equal" condemned generations of black southerners to mistreatment including rape and murder. The Court refused to admit that "separate but equal" was nonsense until the 1954 Brown v. Board of Education decision.
"Separate but equal' wasn't the only nonsense theory the Court accepted in the late 19th Century. The Court prevented state government from protecting workers from exploitive employers by accepting a nonsense theory called "freedom of contract". Under this theory, government protection of workers supposedly prevented their "free" ability to contract with employers. The Court ignored the fact that workers weren't in a position to negotiate. They had to accept bad working conditions or risk possible starvation.
The same sex marriage issue before the Supreme Court is not about whether homosexuals should be allowed to marry. Homosexuals have always been allowed to get married and many have married individuals of the other anatomical sex. Many individuals strongly encourage their homosexual acquaintences to marry a member of the other sex.
The issue before the Supreme Court is whether to radically change the ancient definition of marriage. The arguments for same sex "marriage" are just as nonsensical as the arguments for "separate but equal' and "freedom of contract".
Marriage is first and foremost a biological process. It is the dominant human mating practice and existed before the establishment of formal governments. Marriage unites the two different types of human beings (male and female) to form a unit capable of reproducing the species. Scientists know that the male body produces a chemical that benefits the female body. Marriage seems to provide health benefits to men, but it's unclear whether chemistry is involved.
The two individuals may even become chemically addicted to each other. Addiction could explain why a woman will take her abusive husband back much like an alcoholic with liver disease will continue to drink.
Governments have traditionally protected marriage because of the benefits to society marriage provides by encouraging production of new members. Benefit programs were established at a time when the time requirements of household duties such as cooking and cleaning meant it was best for one parent to provide the income and the other to handle family duties. Such benefits may or may not still be needed, but any decision in this area should be handled by those selected by the people rather than those selected by a few politicians.
Providing some of these benefits, such as tax breaks or access to the Social Security benefits of another, may discriminate against single adults who cannot obtain comparable benefits. Government can justify this discrimination because of the potential benefit to society of the new members heterosexual marriage may provide even when a given couple doesn't intend to produce a new member.
Providing benefits. such as Social Security or health care, to same sex couples illegally discriminates against single adults. Society can receive no benefit from same sex couples. Two women cannot produce a child together. To become pregnant a woman has to obtain sperm from a man outside the relationship just like she would if she were a single adult.
The Court's intervention in social situations in the past has led to disasters such as the Civil War and southern Jim Crow laws. Decisions about social issues require months or even years of study. The idea that individuals who have no advanced education in the social sciences can decide a complex social issue after a few hours of rhetoric is lunacy.
The Court has often claimed that it attempts to "discover the law". Under the U.S. Constitution a law is a measure that has been approved by Congress and signed by the President or passed over his veto. Congress has defined "marriage" as the union of a man and a woman which is consistent with centuries of Anglo American law. If the Court changes the definition of marriage then it will be making a new law and usurping the power of Congress and depriving the voters of their right to choose the people who make important social decisions. If the Court is going to overturn this definition of marriage by the people's elected representatives, then it is time for members of the Court to also face the electorate.
Those arguing over the constitutionality of Obamacare have consistently ignored the fact that Obamacare conflicts with the Supreme Court's ruling in Roe v. Wade. The Court's decision to uphold Obamacare may provide statements that could be used to justify regulating and possibly even prohibiting abortion.
The Court wouldn't need to refer to Roe v. Wade to in effect overturn it. The justices could inadvertently overturn Roe v. Wade by making statements that conflict with it. Attorneys could use such conflicts to argue that Roe v. Wade is no longer consistent with the Court's interpretation of the Constitution.
I'm going to leave the tedious process of examining specific comments by the Justices to those who get paid to do such things. I'm more interested in the general theory involved.
There is a certain absurdity to the Roe v. Wade ruling. The ruling is based on a philosophy of limited government that is closer to the normal views of those called "conservatives" than to the views of those called "liberals". However, the conservatives have traditionally opposed the decision and the liberals have supported it.
The two groups also reverse their normal positions on regulation of abortion providers. Conservatives, who normally try to limit government regulations, favor strict regulation of abortion providers. Liberals, who normally favor strict regulation of health care providers, believe women who seek abortions don't deserve the same protective regulations of health care providers that protect those who visit facilities that treat both men and women.
The philosophy of Roe v. Wade is that health care decisions like abortion are a private matter and government has only limited authority to intervene in private health care decisions. Obamacare is based on a philosophy that there is no right to privacy in health care. Government can control what health care people can obtain by forcing them to purchase insurance that may not cover the type of health care they want or need.
For example, consider the case of a young transsexual who wants to save money he budgets for health care until he has enough money to pay for surgery to transform him into a woman. He might be unable to save his money for the operation if he had to first pay for insurance that would not cover the cost of the operation. Or, consider the case of a young woman who wants to fix what she considers flaws in her appearance, including paying for breast enhancement. Insurance companies wouldn't cover such procedures.
Congress can require people to purchase insurance that only covers conventional treatments that don't help them.. If they benefit from "experimental" treatments instead they must first pay for the type treatment that doesn't help them before they pay for the treatment that works.
Under Obamacare, wealthy members of Congress decide whether or not individuals can afford health insurance regardless of the needs and priorities of specific individuals. Under Obamacare there is no right to privacy in determining spending priorities. Government dictates what they must spend on the health care the government decides they can have.
The people who voted in Obamacare ignore the fact that a Republican president and Congress could make different decisions about health care than a Democratic president and Congress. For example, a Republican president might be able to sharply limit the medical procedures associated with abortion.
Chief Justice John Roberts says in his opinion that the Interstate Commerce clause doesn't authorize the mandatory health insurance provision of Obamacare but that following the Constitution isn't important so long as the Chief Justice is in political agreement with what Congress wants a law to do.
Chief Justice Roberts has apparently forgotten that the Supreme Court's only authority to act is as a legal body. It is not a super house of Congress with the authority to correct what individual justices believe are errors in acts of Congress. The Court is supposed to base its actions on the Constitution rather than on the personal political opinions of the Justices. It is not the role of the Court to determine if a given act of Congress is desirable or not. That is the role of government officials who are elected by the people.
If a majority of the Justices believe the individual mandate isn't authorized by the commerce clause upon which the law is based, then any requirement for insurance purchases is unconstitutional. It doesn't matter if Congress could have made the requirement under another provision of the Constitution. If Congress calls a charge a "penalty" then the Court can only consider whether or not that penalty is in accord with the Constitution. The Chief Justice cannot change the word penalty to the word "tax" to make the law valid.
The only authority the Court has is to send a measure back to Congress so Congress can decide whether to correct what the Court considers to be an error. The Chief Justice cannot say in effect "you little boys and girls in Congress should have called this penalty a tax, so I'll change it to a tax for you." Congress might not want to call the charge a tax because voters wouldn't accept the charge as a tax.
Justices who believe criminals should be prosecuted will nevertheless overturn a conviction if the government used illegal means to obtain a conviction. The Court doesn't say "well the defendant is guilty and the trial court could have convicted him without using illegally obtained evidence so we'll let the conviction stand." The Supreme Court tells the trial court to retry the case without the illegally obtained evidence
The Court must take the same approach when ruling on the constitutionality of legislation. If the legislation is not based on an appropriate provision of the Constitution, then the justices must find the legislation unconstitutional regardless of their personal opinions --- that is if they want people to believe they are motivated by protecting the Constitution rather than on furthering their political beliefs.
Lifetime tenure for Supreme Court Justices may be justifiable if they at least go through the motions of basing their rulings on what the Constitution authorizes. They need to write some legal smokescreen that make it appear their rulings are based on the Constitution. If the Chief Justice or other Justices are going to say in their opinions that their political beliefs are more important than what the Constitution authorizes, then American voters must have the opportunity to determine who serves on the Supreme Court.