SCOTUS is the acronym for Supreme Court of the United States, also known simply as "the Court". Periodically there are vacancies in its membership and the President is called on to nominate, and the Senate to consent to, a new justice. We are that point in our history again and I thought it was a good time to briefly comment on my views on the Court and why careful consideration is important to American freedom.
Many will rail against "judicial activism" and urge support for a "strict constructionist"...also railing against "unelected" deciders of law and those who argue for the view of the Constitution as a "living document". To them I say, activism is vital to our national health and ,yes, the Constitution is a living document that we need to continually re-evaluated through the years. The Founders were not psychics - they could not spell everything out because they did not know what would come up. So they built in flexibility in the document so that it ,and we, could adapt to changing times.
The three branches of government- legislative, executive, and judicial -have separate and distinct functions and areas of power, and also have ways to check the power of each other. This is to prevent over-reach by any and to keep government balanced. As far as the judiciary is concerned their area of power is the interpretation of the law. They are charged with the duty to uphold the Constitution by making sure that all the actions of the other two branches (plus the local and state versions of those branches) are in agreement with the rules of the Constitution , because it is the supreme law of the land.
In order to do this the Court may strike down laws or other governmental action as unconstitutional. It does so in response to cases appealed to it from lower courts. These are brought by ordinary citizens who have not found relief from any other source. We work under the mantra of "majority rules, minority rights". The will of the majority acts through the legislative branch and that is vital to a stable country. But when the rights of a minority are being trampled on it can easily become a "tyranny of the majority" - think of slavery and racial segregation/discrimination that went on for decades even after slavery was outlawed. This is where the Court steps in.
Long standing tradition is important and legal precedence is as well. These are vital to preserve, for the sake of a stable society, and thus conservatism has its place. But liberalism does as well, coming from the same root as liberty, and seeing that only in growing are we truly free. It is akin to matters of faith where some are mired in legalism...those who won't do anything unless they firmly believe God has spelled it out as okay. Versus those who believe that God has set us free to live , giving only simple guidelines, and that if it is not specifically denied as bad we can try it. Sticking to traditions in law makes as much sense as in matters of faith. The faith version of this is the proverbial 7 last words of the church "we've never done it that way before".
I believe that the Court stands as the defender of the powerless against the powerful. But you say, don't citizens have recourse through Congress? Yes, the ballot box and Congressional phones lines/emails are open for all and we can make our views known. But when the majority opinion is destructive of the rights of an individual where are they to go but to the Court?
Just after Pearl Harbor there were thousands of American citizens of Japanese ancestry who were interned in relocation camps because they were deemed, solely on the basis of their race/national origin to be suspect in their loyalty to the US. Not for anything they had done but of who they were. They had no recourse in Congress, popular opinion of the majority was against them, so the only way to seek relief against unfair treatment was to go to the Court.
Unfortunately, this is one of the times when the Court failed. In Korematsu v US (1944) the Court decided that the exclusionary zones on the West Coast, excluding those of Japanese ancestry, were constitutional. The Chief Justice even said that the defendant was not excluded because of his race! It took us almost 40 years to apologize and say that the decision was wrong. Similarly it took over 50 years to determine that "separate but equal" rationale for racial segregation in schools was wrong (Plessy v Ferguson 1896 to Brown v Board of Education 1954). And it took Constitutional amendments (13th,14 th) and the Civil War to fix the situation and finally outlaw slavery after the disastrous Dred Scott decision in 1857. So it is important for the Court to get it right.
Some in our country would like to restrict the jurisdiction of the Court, even some (Texas GOP platform) who would like to do that in cases involving the Bill of Rights! My friends, the Bill of Rights is toothless without the Court. The right of legal counsel when on trial (Gideon v Wainwright 1963) or advice of legal rights when arrested (Miranda v Arizona 1966) were both strengthened by the Court. When popular opinion in reaction to current events (think 9-11) looks for scapegoats among the powerless there is great need for an entity like the Court to stand up in defense.
Some have said that the Court must be impartial. One justice nominee, who is now the Chief Justice, said it was to be an umpire, calling balls and strikes . This envisions a level playing field between the parties to a case. This can hold when there are two individuals involved. But when the case involves the law-making or law-enforcement group (like Congress, President,etc) versus an ordinary citizen, there is no level playing field. So the Court must take steps to re-examine the law and the Constitution and find out if there is to be relief for that individual. Law-makers and Law-Enforcers need no defense - they have the power. It is the individual who needs protection for his/her liberties.
For those who would blanch at a "re-examination" of the Constitution let me give you a parallel situation. For those of you who are people of faith, relying on a scripture for divine guidance. Have you learned all you can from your first reading of it, or do you often have the experience that you see new things/new truths or understand more each time you re-read it? I know I do.
Is it because God changed? No, it is because we have grown and times have changed and we need a fresh understanding of divine will to apply to our new situations. It is much the same with the Constitution. It has not changed, but the times and we have , and there is always a need to further our application of its principles and laws to the times we live in.
The same judicial nominee/now justice said that benefit of the doubt should go to the lawmaker/law enforcer. No, that is not how our system of justice works and he should know better. The benefit of the doubt should always go to the one accused "innocent until/unless proven guilty". An activist Court is a hallmark and defense of individual liberty and we should demand and celebrate that -today of all days.
Happy Fourth of July everybody! :)
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Sunday, July 4, 2010
Tuesday, April 27, 2010
immigration, part one
The hot news topic recently has been immigration. It has been spurred by the enactment of a new stricter law in Arizona, a state that I spent considerable time in in the past, but which I am glad to be out of. There are many reasons, chiefly climate and politics, but I still have good memories and friends from that period in my life as well. My experiences in Arizona are complex, as is the issue of immigration. It brings up many issues of faith and politics interacting and I hope to cover a few over the next few posts in order to prod your thinking.
There is the issue of entitlement. We often think of entitlement as an attitude of "others", chiefly seen in the anti-equality arguments of social conservatives against (as they say) "special rights" for gays. But I think that those of us who can trace our ancestry in this country back to colonial times have a habit of thinking in terms of entitlement for ourselves - and that can be dangerous.
There is the issue of dealing with those less fortunate. Our hearts are drawn to give to help victims of natural disaster, poverty, disease, in foreign lands. But when they come here to live and work, our attitude changes. We tend to be very protective of "our space" ,."our resources",. and forget everything we learned in kindergarten (sharing).
There is the issue of law. We are adamant that others abide by the letter of the law, but how often have we slipped out of ticket due to an understanding officer? What if the law was applied to us with the tightness that we advocate for others?
And finally, the issue of passion. It is a good thing to be passionate and to have strong opinions - it shows we care. But all too often it can degenerate into fear, distrust, hatred, and prejudice , of many varieties (not just racial).
I think the most important thing is to think clearly and with empathy...or at least with sympathy. We may not always be able to identify with what others are experiencing or feeling, but we can try to "walk a mile" in others shoes and think how we would feel if what we advocate doing to them were done to us. It just might change our attitudes and our hearts.
More to come in future posts.
There is the issue of entitlement. We often think of entitlement as an attitude of "others", chiefly seen in the anti-equality arguments of social conservatives against (as they say) "special rights" for gays. But I think that those of us who can trace our ancestry in this country back to colonial times have a habit of thinking in terms of entitlement for ourselves - and that can be dangerous.
There is the issue of dealing with those less fortunate. Our hearts are drawn to give to help victims of natural disaster, poverty, disease, in foreign lands. But when they come here to live and work, our attitude changes. We tend to be very protective of "our space" ,."our resources",. and forget everything we learned in kindergarten (sharing).
There is the issue of law. We are adamant that others abide by the letter of the law, but how often have we slipped out of ticket due to an understanding officer? What if the law was applied to us with the tightness that we advocate for others?
And finally, the issue of passion. It is a good thing to be passionate and to have strong opinions - it shows we care. But all too often it can degenerate into fear, distrust, hatred, and prejudice , of many varieties (not just racial).
I think the most important thing is to think clearly and with empathy...or at least with sympathy. We may not always be able to identify with what others are experiencing or feeling, but we can try to "walk a mile" in others shoes and think how we would feel if what we advocate doing to them were done to us. It just might change our attitudes and our hearts.
More to come in future posts.
Friday, July 31, 2009
spirit of the law
Have you ever watched a basketball game where the referees forgot their role? Every little infraction of the rules ,no matter how minor, was whistled, the foul line became busy, and the game became a bore. Despite the fans cry of "just let them play", the referees persisted in their enforcement of the rule, and later were surprised that people complained. They said ,"but the rules are the rules and must be enforced.",forgetting that it was a game people came to see, not a whistle-fest.
Now everybody understands what a travesty that is. But a greater travesty occurs when the "law and order" crowd get their way in the fields of the courts and law enforcement. Then it is not just a game that suffers, it is real people and their lives and livelihoods that are damaged.
Remember that a law is only as good as the reason it was made. As Jesus said to the Pharisees, "the Sabbath was made for man, not man for the Sabbath". It was made to provide a rest for mankind, not binders. We must remember why laws were written and judge accordingly. And that a law can't be written to cover everything in specifics , there has to be interpretation and careful application to each case. That is why we have judges, not just legal automatons.
I can think of three instances where insistence on strict,limited law application has harmed our society. One is mandatory sentencing and the "3 strikes" laws. These came from well-meaning individuals but have serious flaws. There are instances of judges excusing criminal activity , but more often I think are cases where the judge is handcuffed. You have to consider first time offenders and repeat criminals differently. And not all felonies are the same, so the 3-strikes laws can handcuff judges as well. Career criminals, shown by lengthy rap sheets, and violent offenders need to be kept in jail to safeguard the public. But there is a whole realm of rehabilitation and restitution, aspects of law that are sorely lacking in our society today. We cannot just "lock 'em up and through away the key". That is madness, financially and otherwise.
Immigration is a bigger issue that needs to be addressed in a separate post, but suffice it to say here that those who cry "but they're breaking the law" about illegal immigration, need to think about their own record and how they themselves would manage if someone caught and prosecuted them on every minor infraction of law -like when they go 5 miles an hour over the posted speed limit?
Finally, in keeping with the continued news over the Supreme Court nominee approval process, what about activism and judicial philosophy on the court? The Constitution is a set of laws, written by good men over 200 years ago in a society that is vastly different from ours. It's principles remain vital, but it must be allowed to live and breath and adapt to continual changes. That is why the Congress is given the "necessary and proper" power. The founders knew that things would change and the government needed the flexibility to adapt. Judges must be mindful of this, as well as remembering their role as guardians of liberty, protecting the rights of the minority against excesses of the majority, against over-reaches by legislative or presidential power. They are a check and balance, not just a rubber stamp for law enforcement. Much more about that whole area later, but this again is an area where the spirit of the law needs to be remembered.
And of course, it all comes back to the golden rule - "do unto others as you would have them do unto you". Or as someone else wrote it, before you judge me , walk a mile in my moccasins.
Now everybody understands what a travesty that is. But a greater travesty occurs when the "law and order" crowd get their way in the fields of the courts and law enforcement. Then it is not just a game that suffers, it is real people and their lives and livelihoods that are damaged.
Remember that a law is only as good as the reason it was made. As Jesus said to the Pharisees, "the Sabbath was made for man, not man for the Sabbath". It was made to provide a rest for mankind, not binders. We must remember why laws were written and judge accordingly. And that a law can't be written to cover everything in specifics , there has to be interpretation and careful application to each case. That is why we have judges, not just legal automatons.
I can think of three instances where insistence on strict,limited law application has harmed our society. One is mandatory sentencing and the "3 strikes" laws. These came from well-meaning individuals but have serious flaws. There are instances of judges excusing criminal activity , but more often I think are cases where the judge is handcuffed. You have to consider first time offenders and repeat criminals differently. And not all felonies are the same, so the 3-strikes laws can handcuff judges as well. Career criminals, shown by lengthy rap sheets, and violent offenders need to be kept in jail to safeguard the public. But there is a whole realm of rehabilitation and restitution, aspects of law that are sorely lacking in our society today. We cannot just "lock 'em up and through away the key". That is madness, financially and otherwise.
Immigration is a bigger issue that needs to be addressed in a separate post, but suffice it to say here that those who cry "but they're breaking the law" about illegal immigration, need to think about their own record and how they themselves would manage if someone caught and prosecuted them on every minor infraction of law -like when they go 5 miles an hour over the posted speed limit?
Finally, in keeping with the continued news over the Supreme Court nominee approval process, what about activism and judicial philosophy on the court? The Constitution is a set of laws, written by good men over 200 years ago in a society that is vastly different from ours. It's principles remain vital, but it must be allowed to live and breath and adapt to continual changes. That is why the Congress is given the "necessary and proper" power. The founders knew that things would change and the government needed the flexibility to adapt. Judges must be mindful of this, as well as remembering their role as guardians of liberty, protecting the rights of the minority against excesses of the majority, against over-reaches by legislative or presidential power. They are a check and balance, not just a rubber stamp for law enforcement. Much more about that whole area later, but this again is an area where the spirit of the law needs to be remembered.
And of course, it all comes back to the golden rule - "do unto others as you would have them do unto you". Or as someone else wrote it, before you judge me , walk a mile in my moccasins.
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