Fake Constitutionalism: How Republicans use the Courts to Disempower the American People

    Today's Republicans believe the key to power in the United States is controlling the judiciary. To that end, during Republican administrations they appoint young conservative judges, even if unqualified (See Clarence Thomas*) and stonewall judge appointments during Democrat administrations.

     Think Progress has a great article about this, noting that only 58% of Obama's judicial appointments have been confirmed, the lowest of any president by far.  Alliance for Justice has detailed reports on pending nominees and vacancies.Apparently, Democrats are much more willing to support conservative judges than Republicans are to support Democratic-leaning judges. 

     Conservatives are appalled when one of their own appointees actually judges fairly. Justice David Souter, a typical New Hampshire Republican, stunned right wingers with his integrity. Souter in turn was baffled when they turned on him. This may be why Souter stepped down from the court. He was unaccustomed to the animosity and to being described in a way that did not fit him at all.  Souter is simply not a liberal, no matter how the Republicans howl. He's a New Hampshire conservative (Most New Englanders will understand what I mean.)

     Souter does not abide by what conservatives - such as the radical right wing racialist American Thinker - call constitutionalism. Their version of constitutionalism - a kind of legal formalism - actually is a fake constitutionalism. I say this because the conservatives use formalist "strict construction" readings in a way to subvert the law's intent, purpose and meaning.  Legal formalism is what the US Supreme Court employed in Plessy v. Ferguson, in the Dredd Scott decision, and in other holdings that stripped Americans of rights. Michael Klarman,  a legal historian at Yale, has done substantial scholarship on how the courts used formalism to permit states to deny black voters the right to vote despite the 14th and 15th amendment.  His article "The Plessy Era" published in the 1998 Supreme Court Review is particularly eye-opening. Klarman todays argues for a living constitution. If you disagree, remember that under the original constitution, black Americans counted as only three-fifths of a person. The South didn't want black Americans to vote, but they wanted to use their slaves to increase the number of votes they had in Congress. It's important to honor the law by obeying its purpose, not reading it so narrowly as to prevent it from being enacted.**

     Souter, on the other hand, contemplated the nuances of the law.  He took the purpose of the law into consideration when writing his opinions. He was sensitive to the criticism lodged against him for his fair-minded approach.  He encountered what he perceived as "criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties."


     Conservatives who label themselves constitutionalists (which they are not) argue that using such an analysis to arrive at decisions can comprise a kind of law making. The constitution clearly sets aside the lawmaking power for Congress alone.  We don't want the courts making new laws. But we do want court's interpreting the laws fairly and honoring the purpose of the laws.

      Souter took on the fake constitutionalists when he addressed graduates at Harvard University's 359th commencement last year.

      I'll directly quote him because the language is so beautiful.   (He really is a fine craftsman with words)  This is directly from a copy of his speech printed verbatim by the Harvard Gazette May 27, 2010.

          "The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

          There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  If one of today’s 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person’s age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected.  No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.  The fair reading model would describe pretty much what would happen.  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.
          Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.
           But this explanation hardly scratches the surface.  The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time.  Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.  Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them."

***********************

      Conservative Republicans excel at marketing - they often use terms in an Orwellian sense - and when they say Constitutionalism, they generally mean playing word games to subvert rights guaranteed by the Constitution.  Why would anyone do this? Being a conservative Republican has been very lucrative for otherwise banal people. Witness Clarence Thomas, our nation's most famous affirmative action recipient. (He hates knowing that, and knowing that everyone knows it, and opposes affirmative action, yet will not step down). He was 43 when named to the nation's highest office and he had suddenly groomed for the post. They plucked from the EEOC and set him up as an Appeals Court judge. Most Appeals Court judges rise through the ranks and spend some time learning the ropes as Federal District Court judges. Conservative Republicans wanted someone willing to use the the nation's top court to disenfranchise minorities. Who better than Thomas, an outspoken conservative Republican who happens to be black.  They had seen him in action at the EEOC, effectively working against his own  Thomas' wife has made three-quarters of a million dollars now in her quest against universal health care and the Affordable Health Care Act and her husband is on the court that will decide whether the Affordable Health Care Act. He has been greatly enriched by opposing the Affordable Health Care Act but he has not recused himself. The New York Times ran an interesting article about the problem in February. (Read it yourself, link here) Velvet Revolution called for an FBI investigation link here.  Congressman Anthony Weiner, D-NY, has a petition demanding Thomas stop delaying filing his current financial disclosure forms (currently overdue).  If Thomas and the court strike down the Affordable Care Act, which was passed by Congress, are they not taking upon themselves lawmaking powers. The very lawmaking powers that the Constitution has reserved for Congress alone. As constitutionalists, shouldn't they oppose any such action to overturn the will of congress because they happen to disagree? Well, there you have it. Constitutionalism, as a movement promoted by Clarence Thomas,  is a fraud, a chicanery, and a marketing term for conservative Republicans who oppose the constitution.

     I suspect that New Hampshire Republicans, like Souter, will remain committed to seeking fair application, fair judgment and intellectual integrity in the judicial process.  Souter, by the way, although retired,  continues to serve on the Appeals Court.

     Constitutionalism must be exposed for what it is. It has already cost the American people one of their finest judges, David H. Souter, and burdened them with one of the worst, Clarence Thomas.

     Today's Democrats ignore the judicial confirmation process at their peril.  The conservative Republicans know that they can use the judiciary to subvert democracy and the Constitution. The number of vacancies in the nation's high courts show that Obama has been virtually powerless to appoint judges.

     In every state, there is a judicial committee to nominate judges. This is how the pipeline to presidential nomination starts. I recommend you get involved now. Make some phone calls. Find out how to get on that committee. Talk to the people on that committee. Get involved.

     Next, send a few emails to your Democratic Party leaders explaining the problem. Brainstorm ways to get around the conservative blockade. The future of our nation's children future depends on you.


 * Thomas was on the appellate bench 15 months before Bush nominated him to the nation's highest court. Prior to that he had been head of the Equal Employment Opportunity Commission, where he was well known for NOT investigating allegations of discrimination. Cornell West  in Race Matters (p. 23) alleges that Thomas left 13,000 age discrimination complaints to "dying on the vine for lack of investigation" during his 8 years at the EEOC. Even today, Thomas deals with the reality that most people know his ultraconservative law clerks do much of his writing and research. He seems quite defensive about it too: http://www.washingtonpost.com/wp-dyn/articles/A22779-2004Oct10.html
 
**That's what today's conservative Republicans have been fighting for - strict readings that actually disempower Americans. Across the nation, Republicans have launched new proposals for laws (often drafted by a sinister group named ALEC) that make it more difficult for young people and minorities to vote. If those laws go to conservative judges - well, we will probably see more decisions reasoned the way the Supreme Court did in Plessy v. Ferguson.