The oath taken by public officials includes the promise to “preserve, protect and defend” the Constitution. Is this a pointless pledge or is there a risk the day will come when the Constitution is no longer our governing document.
For many people, the Constitution is like a solid wall or building. They cannot conceive the possibility that it will go away or cease to function. In fact, the Constitution is more like a tree that provides stability and protection for everyone but needs nurturing and protection. In recent years it has too often been used as a club to force people to accept what the representative branches of the government can’t or won’t pass.
The Supreme Court building has the inscription “Equal Justice Under Law.” This is meaningless unless the justices themselves are under the law. That is why Chief Justice Robert’s confirmation description of the role of the court as an “umpire” rings true to most citizens. The court has its prestige and respect as upholders of the law.
The opposing theory of the law says that Justices need to bring their special understanding and empathy to the case. I find that flawed in many ways. It means that nobody knows what the law is unless they are sure they can know what sympathies will come into play when a case is decided.
More importantly, it moves us from the American view of a republic to the philosopher-king model of Plato’s Republic. He envisions a group of specially trained, enlightened rulers who are bound only by the wisdom they learned during their training. Who but the educated should rule? But, this is the opposite of the concept of representative government where, presumably, the public can direct the course of government.
The court’s opinions in Brown v. Board of Education moved the court in the wrong direction. There is an assumption that the public is unenlightened and needs a wise court to correct their mistakes. In fact, the words “separate but equal” were not approved by the people for inclusion in the Constitution. Those words came into Constitutional law through the Supreme Court’s Plessy v. Ferguson opinion.
It was the court’s mistake, not the public’s, which had to be corrected in Brown. Unfortunately, the court used the case to give itself a mandate to play philosopher-king and guide the benighted public on the path it “should” follow.
Voters at the time of the Brown decision were people who had spent years taking orders and deferring to those in authority. Also, it was reasonable to assume that public schools should help every child.
Since then, the courts have issued various rulings and been shocked to see the public work to overturn them or get around them. This has been especially true in the abortion and same-sex marriage issues. If the courts have no limit to their authority and seem to rule on their feelings instead of the law, there is a problem. If the courts are not “under the law” why should the people feel constrained by the law?
But another problem adds to the question of support for the law. The public deals with a wide variety of laws and regulations from multiple government agencies and levels of government. In the end, their assessment of the value of “the law” depends on their felling of freedom, safety and the ability to provide for themselves and their families.
Arizona Governor Jan Brewer recently made a very effective commercial showing why Arizona passed their new law on immigration. Standing eighty miles from the Mexican border, she points to warning signs posted by the Federal government. Instead of working to create a safe area, they warn citizens to stay out of certain areas.
In Maryland, despite death penalty laws on the book, there is a person on death row who was convicted of killing a witness to another murder he committed. The consensus is he will die of old age. For some strange reason, Baltimore police can’t find any witnesses when crimes, even murders, are committed. Sane people see why.
Now the issue of Federal enforcement of white voter’s rights is coming into question. The Washington Post was slow to the story, but they are now covering it.
For many people, today’s legal system doesn’t provide safety, as it should, and the courts do what they should not by reading beliefs and views into the constitution and making up rights whole cloth.
Is it hard to believe the public might be willing to see the end of this system?