Month: January 2022

Crimson, def.: A rich deep red color tinged with blue, inclining towards purple. Alt. def.: In politics, representing socially responsive conservatism.

Much is being made of the liberal/conservative, Democrat/Republican nature of the Supreme Court. Clearly, the Supreme Court is currently in an era where partisanship has become much more of a factor in the selection of Supreme Court justices as well as appearing to influence the actual decisions of the Court, and this has become detrimental to the rights of the American people.

Beginning with the refusal of the Republican Senate to even consider the Supreme Court nomination of Merrick Garland solely because it was made by a Democratic President, continuing with the increasingly contentious and partisan confirmations of Neil Gorsuch and Brett Kavanaugh, and culminating in the fast-tracked party-line vote to confirm Amy Coney Barrett, partisanship has never been more apparent in the selection of our Supreme Court justices.

Some people may take satisfaction in the increasingly conservative/Republican balance of the Court believing that traditional Judeo-Christian values will be maintained, others will take satisfaction because it represents a partisan victory. However, being the arbiter of societal values or showing preference for the principles of a particular political party is not the role of the Supreme Court.

Based upon a commonsense reading of the U.S. Constitution, the Supreme Court has a limited number of responsibilities:

• To ensure that the powers of the Executive and Legislative branches of the Federal government remain in balance.
• To ensure that the powers of the Federal and State governments remain in balance.
• To ensure that the rights of the People remain in balance with the powers of the Federal, State, and Local governments.
• To ensure that individual rights of the People remain in balance when there is a conflict between them.

Beyond these responsibilities lies the potential for both judicial overreach and underreach.

The U.S. Constitution and its Amendments provides the basis for the Supreme Court to render its decisions. Constitutional scholars have written many overeducated articles about the merits of the two fundamental philosophies regarding Constitutional law that form the basis for many decisions, but the difference between them is quite straightforward.

The first Constitutional philosophy is that of textualism and originalism. This holds that the Constitution was written as a definitive document that should be interpreted as originally written by the ratifiers in 1788. Any disagreement as to the intent of the ratifiers can only be resolved by means of an actual Amendment to the Constitution because the ratifiers are no longer alive to explain what was intended.

This philosophy essentially means that contemporary societal issues cannot be considered in the application of Constitutional law. In addition, this means that the Federal government has a limited jurisdiction within individual States, and that each State is generally free to determine its own laws and to determine to what extent the rights of its People can be abridged.

From the perspective of textualism and originalism, continuity of laws between the individual States is of no concern. The population of the U.S. is nearly one hundred times greater now than it was in 1788, interstate commerce has become a fundamental basis for our economy, and people travel and move from state to state freely and with great frequency. It can be argued that strict textualism and originalism has become a detriment to our unity as a country by minimizing the extent to which the Federal government can establish a more consistent legal framework that individual States must abide by.

The second Constitutional philosophy is that of judicial activism. This holds that the courts can and should go above the applicable law to consider broader societal implications in its decisions. Judicial activism is expressed through judicial discretion. Such a discretionary decision essentially becomes a new law without the benefit of legislative action. Judicial discretion overrides historical precedent and existing law in the interest of a perceived common good.

This philosophy essentially means that the judicial system can make significant and far-reaching changes to society without the involvement of duly elected representatives of the People. Remedies to reverse such decisions involve appealing to higher courts. When the Supreme Court itself acts with judicial discretion, however, no appeal is possible, and it falls to Congress and the President to pass a new law to reverse such a discretionary decision.

Judicial activism is typically associated with liberalism and is used as a pejorative against judges who are perceived to be liberal.

Case in Point: Brown v. Board of Education, which resulted in efforts to desegregate schools through student busing, the intent being to integrate children of different ethnic backgrounds for the purpose of equalizing educational opportunities and ending racism. Although in retrospect the decision has had mixed results, this was fundamentally a well-intentioned decision intended to address a problematic societal condition.

Judicial activism has been used by conservatives as well but is typically not labeled as such due to the weaponized liberal-directed connotation of this term, and this tends to obscure the true nature of activist conservative decisions.

Case in Point: Citizens United v. Federal Election Commission, which effectively resulted in corporations, associations, and labor unions being allowed to make unlimited political donations as an expression of their 1^st Amendment rights.

In a direct contradiction to the philosophy of textualism and originalism, 1^st Amendment rights were extended to organizations, who were now considered to be de facto people. The Bill of Rights, inclusive of the 1^st Amendment, was specifically intended to protect the People from government tyranny. It took a convoluted and torturous interpretation of the 1^st Amendment to arrive at the Citizens United decision.  

Eleven years later, the clear result of this activist decision has been a virtual takeover of our political system by special interest groups who are able to make unlimited dark money contributions through Political Action Committees to influence elections and to ensure that laws and regulations will favor them, all to the detriment of the interests of the People.

Very few exercises in judicial activism in the entire history of the Supreme Court have been so injurious to the common good of the People as Citizens United v. Federal Election Commission has proven itself to be. The corruptive nature of this decision cannot be overstated.

Clearly, both strict constitutionalism and judicial activism run the risk of rendering decisions that lead to unjust outcomes that are injurious to rights of the People.

The Supreme Court is most effective when it stays true to the limited responsibilities as previously described but is also willing to consider its responsibilities in a contemporary context. Essentially, this means that the Supreme Court should strive to be conservative in its approach, but also recognize that there are human consequences to the decisions it makes and that decisions must be made first and foremost to protect the rights of the People.

The three Supreme Court justices appointed by President Trump are thought to be extremely conservative and the expectation is that the decisions made by the Supreme Court will now favor State’s rights over Federal law. If this holds true, this could certainly result in the rights of the People in a significant number of states to be negatively affected.

Restrictions on women’s reproductive lives, restrictions on voting access, restrictions on the rights of workers to organize, restrictions on the right to assemble, restrictions on freedom of the press, the intimidating influence of armed civilian militias, the use of religious freedom to deny services and access to previously protected categories of people – in fact, in some states much of this is already occurring.

It is too soon to tell how much or how little these newest Supreme Court justices will protect the rights of the People. Once confirmed, the gravity of the position as a Supreme Court justice is likely to make one or more of these justices reflect on their previously held beliefs. It is possible that the views of these newer justices will moderate over time, making concerns regarding their perceived partisan leanings irrelevant.

There is precedent for this – Harry Blackmun comes to mind. A conservative-minded justice, Blackmun recognized that the rights of the People needed to be considered first and foremost, and he became more liberal-minded as time went on.

It would be much better, however, if Supreme Court justices could somehow be selected without the primary consideration in their selection being that they share in and support the views of the political party in power at the time.

Republican presidents look to the Federalist Society for recommendations on possible Supreme Court justices. All six of the current conservative justices are recommendations of the Federalist Society.

Democratic presidents could but apparently do not look to the American Constitution Society for recommendations on possible Supreme Court justices. The American Constitution Society was established in 2001 as a philosophical counterbalance to the Federalist Society.

That being said, what if the President were to take a different approach? Suppose that the President asked both the Federalist and the American Constitution Societies for a list of judicial candidates that each society believed would be acceptable to the other society. The expectation is that there would be candidates that appeared on both submitted lists. If not, additional lists could be requested by the President until consensus candidates were obtained, and the President would have the opportunity to choose from these candidates.

There is the question as to whether the Federalist Society and/or the American Constitution Society would accept this challenge. Extremists rarely consider other opinions or points of view.

That being said and acknowledged, this approach would prevent the nomination and confirmation of extremist candidates from either end of the judicial spectrum and should result in a more moderate and impartial Supreme Court that focuses on the rights of the People.

For much too long, the selection of Supreme Court justices has been used to satisfy the political ideologies and ambitions of an elitist group of people. The independence of the Supreme Court as well as the rights of the People have suffered for it.

We need to spend some time as a country thinking about our health. Not our physical health – i.e., the Covid pandemic, but our mental health – i.e., the Trump syndrome that has infected us for years.

I recently heard a description of the events of January 6, 2021 that put its profoundly serious nature in the proper perspective – this was the first time in the history of our country that the transfer of power after a presidential election was not peaceful.

Instead, there was a violent and illegal forced entry into the Capital building by hundreds of people that temporarily delayed the transfer of power. If things had gone differently that day, our vice-president and various congressional members would have been assassinated.

When a recent poll indicates that 40% of Republicans believe that armed insurrection against our government is justified in some situations, and when a majority of Republicans believe that illegal actions were taken during the presidential election that changed the outcome of the election – despite all such allegations having been shown to be false – one can only conclude that the stage is being set for more violence to come.

We have former high-ranking government officials boasting of their efforts to prevent the will of the people from being carried out despite the outcome of the election. These officials have shamelessly provided a blueprint of their intended manipulation of our Constitution to achieve an outcome that they felt was preferable to that of the actual election.

These officials expressed pride in the fact that their plan did not require any violence in order for it to be carried out. They gave no consideration to the violence that would have resulted if their plan had actually been successful.

The excessive polarization of Americans due to decades of dysfunctional government and the callus profit-driven manipulation of society by special interests has led many Americans to be deeply fearful and distrustful of the government. Many believe that their constitutional freedoms are being threatened by the government, as well as their values and way of life.

In the absence of thoughtful leadership and civilized discourse, and in the presence of a stated unwillingness of our elected officials to respect the will of the people, how can things ever become better?

No wonder that the emergence of Donald Trump struck such a chord in the hearts and minds of so many Americans. Here was a man who spoke his mind without fear or filter, a man of strength of character and sense of purpose. Here was a man who seemed to understand the people and was willing to stand up for them against the politicians, the press, the special interests, the socialists, and everyone else who was not a true patriot.

So, if a violent insurrection or a bloodless coup is required in order to keep Donald Trump in power, then so be it. To hell with the Constitution and the will of the people. Having a strong leader to follow and believe in is the most important thing, a clear example of the ends justifying the means.

The complete surrender by the Republican party to the will and ego of Donald Trump is frightening. That one man could intimidate an entire political party and essentially become its only voice exposes the hollowness of the Republican cause and the weakness of those who represent it.

It does not help that the Democratic party is lead by old politicians past their prime who cannot speak to the hearts and minds of the American people, and who are afraid to confront the simple-minded ideology of the progressive agitative socialist leftist element of the Democratic party.

It is no wonder that, for many Americans, there is no alternative to Donald Trump, America’s strong man, and they may be right.

Like many others, I went to church on Christmas Day. I am not a Catholic, but I went to a Roman Catholic church. I am not an unquestioning believer, but I recite the Lord’s Prayer and the Apostles’ Creed from memory. Sometimes I listen intently to the biblical readings and the homily, and other times I sit in private contemplation as the service continues around me. I do not partake of the Eucharist because I have not met the requirements of the Church to do so, but I understand and appreciate its significance.

It occurred to me this Christmas as I sat in the pew how special it is to be among people who follow their faith and to share in their celebration of the beginning of Christ’s life. Even though it is unlikely that Christ was born on December 25^th 2,021 years ago, the exact date does not really matter. What is important is that Christianity began and then became a religion and way of life based on love and generosity of spirit, encompassing our humanity, and requesting our humility.

I am not a religious scholar nor am I a historian, but my profound sense is that all religions share in this fundamental foundation of humanity and humility. This shared purpose has been bastardized by rules, dogma, ceremony, control, and an insistence that there must be one true faith. Because of this, our shared humanity and humility have been forgotten.

Instead of appreciating the value of faith in all its manifestations, we dismiss those who do not share our beliefs. Those who have no beliefs find it easy to dismiss those who do. In the end, we find it difficult to practice acceptance and tolerance, and instead practice condescension and condemnation.

It is in the smallest and most remote of churches, synagogues, mosques, and temples that one can find the purist expression of faith. Removed from the trappings of politics and power that exist in religious hierarchies, priests and rabbis and imams who have no earthly ambition or aspiration are free to simply speak the word of God.

It is only when religious leaders, full of earthly conceit and arrogance, insist on their divine authority to interpret the word of God that religion begins to lose its connection with the holy spirit of God.

Quiet contemplation and meditation on the word of God will inevitably lead to a sense of humanity and humility, both of which are very much absent from many people’s lives. Many people profess their faith but do not practice it. Anger, intolerance, indifference, a manifestation of hatred and distrust and a willingness to engage in violence – there is no spirit of God at work when these emotions prevail.

What difference does it make if our constitution guarantees us freedom of religion when so many of us believe that there is only one true religion and only one true way to worship? We should not let ourselves be offended by the way in which other people seek the word of God.

We need to treasure our freedom to worship. In other countries where there are restrictions placed on religion and religious worship, other freedoms are equally in jeopardy. Freedom of expression, freedom of association, freedom of passage, freedom to think and dream and imagine – they can all be lost here in this country as well.

The very act of seeking the word of God brings enlightenment, and with enlightenment comes a sense of freedom.

No matter how much we believe that we know the word of God, there is always something more to learn, a deeper understanding to be attained. In the end, the fullness of knowledge lies beyond our brief existence, no matter what our belief and our faith, but is that not a great wonder in and of itself? If we cease to wonder and cease to learn, we cease to be enlightened, and then we cease to be free. We return to our earthly worries and material desires and imprison ourselves by them.

This is how faith and freedom are inseparably intertwined.

During this holiday season, as we visit our family and friends, and freely celebrate the season with food and drink and music and gifts, we should not forget to also spend time in quiet contemplation of the importance that faith has always had throughout the history of mankind.