Process V. The People of the United States
A system is defined as an organized collection of parts united by interactions and designed for the accomplishment of a specific purpose. The judicial system is an organized collection of legal actors, but to what goal they strive is debatable. Christopher Langdale would argue that a judge’s role is to apply constitutional principles to controversies as they arise. Benjamin Cardoza, on the other hand, felt that judges should seek justice and go so far as to collect evidence to help prepare their decisions and predictions. I do not believe it is conceivable to apply a certain set of principles or procedures to the adjudication process and as if brought down off a mountain by Moses assume it is never changing. The Constitution of the United States of America was not written by a group of fortune-tellers with a crystal ball but by a group of elite whites, some of whom were racists, who couldn’t possibly envision the people and problems facing Modern day U.S.A.
In good company, Chief Justice Rehnquist noted that the general language of the Constitution left the door open for adjustment to a changing environment, though the Legislature isn’t always quick to act on this power. One must be careful in expanding or contracting the words of the constitution so as not to create a larger evil in the process of cleansing evil. It is hard to foresee the unintended consequences of a policy adjustment or change. There are certain rare instances, however, when the gross nature of the evil is so obvious that coupled with failure to act on the part of the Legislature merits action by the courts to enforce justice. To the best of their ability, courts must take action democratically. In the absence of court action to cleanse such evils, our democracy would quickly become an authoritarian regime dominated by the will of a self-interested governmental body or bodies for that matter. As one of the three major component parts of our broader Democratic system, the judicial branch has the ability to create a complete, fair, and finished product, even in the presence of malfunction of the Executive, and/or the Legislative branches. In a world that isn’t fair, democracy is the only way to justice. It is not preposterous to worry that the Supreme Court, an unelected body of justices, would act contrary to the dominant views and beliefs of society thus themselves becoming authoritarian. Thomas Jefferson’s disagreements with the Marshall Court highlight some of these worries as he suggested the constitution was nothing more than a “thing of putty,” that can be manipulated and made to fit the shape of one’s own personal malice. Oliver Wendell Holmes claimed that judge’s decisions are influenced by many factors, the least democratic of which is his personal prejudices. Though these arguments are not unfounded it is the instances in history when the court acted in the interest of the people, in the face of immense political opposition that call for Supreme Court activism.
Aristotle (384-322 B.C.) described a constitution as first the formally established and written rules of governance and second, consisting of the political processes of the community or their political culture. Political culture is not something that is set in stone, but an evolving spirit of a people that encompasses their greatest fears and desires. The political culture of modern day United States is quite a bit different than that of the early 1950’s, let alone the 1776 when our constitution was sculpted. From the 1950’s until the present, events including the Civil rights movement, Vietnam, Watergate, Iran-Contra, Bill Clinton’s affair, and the perceived illegitimate intelligence of our entrance into Iraq following 9/11 have worked to transform the political culture of the United States into a far more cynical form of its 1950’s self. The ever-changing political culture of any land identifies the problems or limitations of constitutions. However intelligent the sculptors of the constitutional masterpiece, it is not something forever, fully applicable to the changing peoples of its jurisdiction. “The times they are a changing,” as the popular Bob Dylan song of the Vietnam era suggested and it’s aptness is eternal. The key question is whether adjudication should be carried out by judges acting like “living oracles” as described by Sir William Blackstone or whether justices should seek justice. Put another way, the question becomes whether the constitution is the unchangeable, superior paramount law of the land or whether it like other legislative acts is alterable when the legislature feels it necessary to alter. The answer is obvious, as clearly the amendments to the constitution posit it alterability.
The Bill of Rights was an attempt by the legislature to democratize the United States constitution. The first 10 amendments were added to the constitution to guarantee the basic individual liberties of a democratic society. The 14th amendment of 1968 worked to further democratize the constitution as it expanded the Bill of Rights from its original jurisdiction of protecting rights of the citizen against federal intrusion to including, for the most part, protection from state intrusion as well. In the words of the 14th amendment, “no state shall deprive any person of life, liberty, or property (pursuit of happiness) without due process of law.” This 14th amendment statement rings true to the words of the great John Locke in his two treatises of civil government. Locke influenced the structuring of our constitution and our Declaration of Independence as much as anyone and it is clear that he valued democratic principles and civil liberties above all in a system of governance. Ultimately the protection of civil liberties seeks to legitimize democratic governmental rule or the rule “of the people.” The Bill of Rights and the 14th amendment show an effective legislature, active in pursuit of the interests of the people, however, this is not and has not always been the case.
The 13th amendment put an end to legalized slavery, which had successfully subjugated blacks by striping them of a home and raping them of a culture. The southern white man, using his enormous political clout, fought tooth and nail to hold onto the supply of slave labor and thus many states continued to keep blacks subordinated decades after the passing of the 13th amendment. It was in 1954 in the case of Brown v. Board of Education that the Supreme Court took a stand for blacks by shooting down their own ruling in Plessy v Ferguson of “separate but equal.” The Brown v Board decision that racial segregation of any sort deprives a minority equal educational opportunities helped create the atmosphere for change that would follow with the civil rights movement. Brown v Board was a noble effort on the part of the Supreme Court to turn back some of the discrimination and erase some of the stigma stamped on blacks since their forced entry into the United States. Brown v Board helped ignite the fuse that broke the chains that bound minorities in the 1960’s with the passing of the 1964 civil rights acts and the 1965 voting rights act. Though congress opened the door for blacks with the civil rights and voting rights legislation, the Supreme Court’s seeking of justice laid the groundwork for their approval by forcing the race issue into plain sight with their decisions.
In order to recommend justice as the goal of adjudication it must first be defined. Justice is not uniform, in that it varies from place to place and culture to culture. Justice in the United States involves the rights of the people and the protection thereof. Unalienable rights are the responsibility of the United States government as they are bound by a social contract with the people who provide consent of the governed. The social contract was being broken when the 13th amendment and 14th amendments were passed and many states didn’t comply with their demands. In stepping in, the Supreme Court helped to correct this breach of contract. In Wyatt v Stickney, Chief Justice Johnson stepped in to protect the rights of mentally ill patients after repeated failure to do so on the part of the Alabama State Legislature and Mental Health Board. Johnson provided justice to the 5000 patients of the Alabama mental facility by first giving the state ample time to implement suitable conditions and then taking the interests of the people into his own hands. No one is immune to the ill effects that sometimes overcome the mind and to that end, mental illness shouldn’t be a forfeiture of unalienable rights, life in particular.
There are some instances where the courts reliance on process points out its absurdity. Alden v Maine involving probation officers suing for overtime ended with the courts affirming the sovereign immunity clause by stating that Maine couldn’t be sued in their own courts. This is a very cowardly decision. Regardless what corrupt policies have been put in place to allow for the little guy to get the shaft, what is wrong is wrong and the courts on behalf of the people should have forced Maine to comply. According to Ronald Dworkin, there are right answers and judges are capable of making them. People getting paid for the work they perform is the right answer, but Alden v Maine represents a lost opportunity for the courts to reserve the rights of the worker.
Dred Scott v Sanford highlights weakness and racism built into the constitution. Chief Justice Roger Taney declared that Scott was nothing more than a piece of property and that as an unalienable right, the Federal court couldn’t interfere with the one’s right to property. In the process of writing black inferiority into his judicial decision, Taney made avoidance of the civil war nearly impossible. Mark Graber’s notion of Constitutional Evil suggests that evil was built into the constitution and is the ultimate justification for the inhumane judicial decision in Dred Scott v Sanford. Graber’s view is in line with that of the Critical Legal Studies School of legal thought, as he believed political elites were in charge of changing the discriminatory constitution and it wasn’t in their interest to do so. Thurogood Marshall’s essay on the bicentennial celebration is a great example that people are more important than process.
Supreme court justices should seek justice. There freedom from reelection provides them with a unique opportunity to provide an unbiased just opinion. What would bar a judge from unjust outcomes if he had to represent a racist constituency? The major motive of all elected officials is to seek reelection and this very often happens by pursuing the interests of the constituency, however harmful they may be to the broader well being of the nation. Supreme court judges are the cream of the crop, exceptionally learned and experienced in law and decision-making. Judges are also isolated from outside contact, which helps them to come to just/fair outcomes. Democracy is a government “of the people” and in some instances the only way to reserve the peoples interest is through the Supreme Court. Process should mold to fit the people, not people to process.
There are some very strong arguments for adjudication based on precedent or process. For starters, the sheer quantity of legal actions in process today makes finding enough uniquely qualified judges to seek justice unrealistic. As was noted in the Tiny courts article, people of much lesser qualifications usually carry out law at the local levels. This mass production law at the local levels relieves tension placed on the legal system by such large caseloads as it quickly and efficiently blows through cases. Uniform process and precedent can best be utilized in the lower courts, as this would provide not quite perfect but the best possible outcomes for these given cases. Robert Moses argument against increasing the number of judges due to the undesired effect of increasing the caseload highlights the pickle the legal system has gotten into and lesser qualified judges filling the lower courts could be the answer if they were to depend more on precedent and process to prevent some decisions of bad judgment.
Marc Galanter’s essay on “haves” coming out ahead of “have-nots” pinpoints a key problem with the legal system that may bar a just outcome from occurring. Obviously the haves can hire better legal representation than the have-nots. The haves typically have far more experience with the law than the have-nots and are thus more familiar with the institution and it’s members. Galanter’s follow up study showed that 53% of all legal representation in Chicago was that of a corporate nature which affirms unfair outcomes. Related to the idea of unfair legal outcomes is the effect of interest groups on the law. Though some would argue that interest groups are the pillars holding up United States democracy, it can also be argued that a few very powerful interest groups get most of the courts attention and thus influence policy. The ACLU, for example, has historically pioneered civil liberties but to what extent do the rights have limitations it is often unknown. Many issues headed by the ACLU may not be dominant interests of the people but their courtroom savvy and experiences leads to their influencing the courts more. Interest groups like the NRA and AARP give certain people power such as gun holders and the elderly while children remain underrepresented. This type of consolidated power by interest groups in non-democratic.
Precedent represents stability. The whole point of the United States constitution was to provide stability the Articles of Confederation could not. Veering away from precedent as it can be argued John Marshall did with the creation of judicial review in the Marbury v Madison case sets in motion the wheels of change that are very hard to bring to a halt or turn back. FISA Court which is made up of members no one knows, who meet in an undisclosed place, and give out warrants to make it easier to bring down criminals is in violation of the laws of due process as written into our constitution through the Bill of Rights. This breach of contract is the breach of the rights of the United States citizen. The wiretap incident is another example of constitutional violation that would have been prevented had precedent and process been the guiding lights to law. Robert Dahl’s conclusion that judicial rulings are never far from the dominant views of the ruling coalition exemplifies a system in which justice may not exist.
"For the People" 