The Supreme Court, like every other branch of government, has become the playground of special interests. These interests are reflected in their decisions, and in their departure from the Constitutional principles is evident in their arguments as well. The discussion below is intended to help people think about the role of the Supreme Court in a principled way, rather than as a group to which they can appeal to achieve personal benefits or impose moral views on others through their decisions.
The Purpose of Government is the Happiness of the People
When the U.S. Founders established the Constitution, their goal was to establish the best system for all people to pursue happiness. In Federalist 62, Madison stated:
A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities. Most governments are deficient in the first. I scruple not to assert that in the American governments, too little attention has been paid to the last. The federal constitution avoids this error; and what merits particular notice, it provides for the last in what increases the security for the first.
The Declaration of Independence is the Mission Statement of the United States. The Constitution is the legal structure designed to achieve it, and the Federalist Papers are the best explanation of the principles behind it.
The recent Supreme Court decisions on Arizona’s enforcement of illegal immigration and “The Affordable Health Care Act” show little knowledge of the means by which that object can best be attained because they retained a more myopic focus on justifying positions based on legal precedent and popular culture rather than the principles of sound governance that concerned the Founders.
The Supreme Court Reflects Political Factions
While the Supreme Court did not create the laws they rule on, their recent split decisions seem to represent the cultural divisions of the two largest political factions in the United States, the Republican and Democratic parties. These two parties, and their financial backers, have incrementally wrested control of the government from the people over a long series of Constitutional changes that gave the Federal government increased power. Supreme Court justices have long been indirectly appointed by political party factions, of which the Presidents serve as nominal heads. We can expect that they, like other human beings are more concerned about their standing with these factions, than the core principles of governance the Constitution embodies.
Indeed, lawyers and judges, just like other human beings, tend to promote the ideas of those who are in a position to improve their lives. In their own pursuit of happiness, they consciously or unconsciously indulge the hand that feeds them. For example, law students, even at the most prestigious institutions like Harvard and Yale, tend to promote politically correct views that represent the views of the teachers that will be grading their papers and helping them secure jobs. Thus, as college students, many promote the liberal and politically correct values of their university. However, when lawyers accept job with Wall Street firms or as a corporate defenders, they tend to espouse the worldviews of their employers because it will help them keep their jobs and enhance their livelihoods. This aspect of human nature–that which compromises ideals in the pursuit of personal fulfillment–is found everywhere human beings exist. This is the human nature the U.S. founders understood so well.
The Founders Worried that Factions would Destroy the System
The U.S. Constitution, with its checks and balances, made the most significant advance on curtailing the manipulation of government to enhance personal wealth or status that had been designed up until their time. However, their biggest fear would be that individual citizens would fail to remain free and independent, throwing in with factions that would lobby the government for services to themselves and at the expense of the other taxpaying citizens.
After the Constitution was written, Benjamin Franklin reportedly warned a citizen, “We have given you a Republic, if you can keep it.” Then in the Federalist Papers, James Madison explained how one of his main concerns was the organizing of factions, e.g., combining money to influence the political system. In Federalist 10, Madison expressed concern that “enlightened statesmen will not always be at the helm.” Can public good and private rights be preserved when factions arise? This was a real concern:
Our inquiry is directed toward securing the public good and private rights against the danger of such a faction, while at the same time preserving the spirit and the form of the popular government. By what means is this object attainable? Evidently by one of two only: (1) the existence of the same passion or interest in a majority at the same time must be prevented, or (2) the majority, having such coexistent passion or interest, must be rendered—by their number and local situation—unable to carry schemes of oppression into effect.—James Madison, Federalist 10.
The creation of superPACs, and the Supreme Court’s willingness to allow them is proof that the justices care not to uphold this primary founding principle. They are now themselves creatures of political factions and their decisions often reflect the faction that got them appointed. They do not often stand out as independent protectors of good governance or the principles that lie behind the Constitutional framework. Although, admittedly, those in the minority often cite constitutional principles against the ruling of the majority of the justices.
The slippery slope towards control by faction began immediately after the Founding. When he retired as the United States’ First President, George Washington warned that people would try to form into groups to use the engines of government for their own ends, destroying the system in the process:
All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.
However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.—George Washington, Farewell Address
Washington’s entire address, which describes many other sources of corruption of good government, used to be require reading in public school civics classes–and for good reason.
Originally, Jefferson was optimistic about the durability of the system they created if it remained agrarian, for Aristotle had noted that farmers were busy growing their own crops and not scheming in way to get something from other citizens.
I think our governments will remain virtuous for many centuries as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America. When they get piled upon one another in large cities as in Europe, they will become corrupt as in Europe.—Thomas Jefferson to James Madison, 1787. Papers 12:442
However, towards the end of his life, Thomas Jefferson, who had served as the third President of the United States, wrote to others with pessimism about the experiment they had created. Too many people were already using it for their own selfish ends. The system probably lasted longer than he envisioned, but we can trace through history the implementation of laws, policies, and Supreme Court decisions that eroded and undermined that system like viruses sapping the memory and power of a computer.
Reclaiming Sound Principles of Governance
Life, Liberty, and the Pursuit of Happiness, Version 4.0, suggests many reforms of Congress that could eliminate the viruses that have crept into the method of passing laws.
We must be passionate to rid our political institutions of all conflicts of interest, which now seem the norm for most regulatory and administrative agencies–from the Department of Justice to the Security Exchange Commission, the Food and Drug Administration and the Federal Aviation Administration.Conflicts of interest exist when anyone who passes a law can benefit from it or has the ability to enforce it.
We must also be passionate to end the control of government by factions, whether they be political parties, labor unions, military hardware suppliers, or other corporations seeking favors or protections. None of these groups have the happiness of the people in their best interest, rather they all seek to use government to obtain something from the people.
“The Affordable Health Care Act” is simply the latest instance of a government run amok, releasing political viruses openly rather than as Trojan horses. From a several-thousand page bill that was designed by special insurance and bureaucratic interests, to its promotion by politicians seeking votes for the next term, to the acceptance of its Constitutional overreach by the justices of the Supreme Court, it serves as an example of a political system infested with, and openly accepting, special interest political viruses.
How can the Supreme Court be Rescued?
If we imagine ourselves back at the Philadelphia convention, with those present having fore-knowledge of what the Supreme Court has done over the last 200 years, we can imagine that they would want to both refine its role and the method by which justices are appointed. One could imagine that the Court would be better structured to safeguard the principles used to design the Constitution, rather than using the Constitution the way Medieval scholars interpreted to Bible to conform to papal injunctions, or Soviet scholars cited Marxism-Leninism for their own institutional aspirations.
If the Court is to serve the ends of the Constitution, two things are important: First, justices need to understand what the American government is all about, and what principles were employed to enable it to work in a way that gives citizens the freedom to pursue of happiness. Second, a justice must not be beholden to an economic interest, but beholden to a system designed to promote the happiness of the general population. We can brainstorm about ways to design the system to achieve these ends, once we accept these as the necessary for the Supreme Court to act properly.
For example, an applicant as a justice could be asked to pass legal tests on their knowledge of the Constitution, and its elaboration in the Federalist Papers, to prove they have a basic understanding of the system and the principles that uphold it. The Chinese system which lasted nearly 1,000 years, employed civil service exams that helped its civil servants understand the legal system.
Then, rather than being appointed by a party apparatchik, such as what the U.S. President has become, it might be better to choose from a field of qualified justices by a lottery, the outcome of which no financial interest or faction could control. This is the same reason citizen jurors are often selected by lottery to ensure as much impartiality of juries as possible.
Discussing proposals like this is more consistent with what the Founders intended at the Philadelphia Convention, than the justification of positions that would give the framers some personal advantage (although they were not exempt from that either–causing Hamilton to go home in a fit of exasperation for a while).
Such discussion of system reform is our challenge today. Many proposals were suggested in Life, Liberty, and the Pursuit of Happiness, Version 4.0 in this spirit. Conflicts of interest need to be routed out of all three branches of government and, in order to respect diversity and freedom, responsibility for positive social action must be left to voluntary associations not enforced by Federal mandates foisted upon citizens through factional control.
In many ways the Republican and Democratic Parties in the United States can be compared to the rivalry between to Hutus and Tutsis for control of the Rawandan machinery of the state to use the resources to further the ends of the controlling ethnic group.
U.S. political parties, or factions, can also be compared to a husband and wife going through a bitter divorce so concerned about fighting over the estate, that neither consider the children who will not have an estate to live on after the divorce. This metaphor is also apt because the traditional role of the wife has been nurture and care, and the Democratic use the rhetoric of care to achieve their goals. The traditional role of men, on the other hand, is that of producer and provider, and Republicans tend to use such rhetoric as they pursue their ends. The demographic reality that more women and social dependents vote for Democrats and more men and independent citizens vote Republican is a reflection of the effective use of such rhetoric by each party.
However, the reality behind the party rhetoric is far different. Neither party shows genuine concern for an integral society in which both production of goods and care for the well-being of the whole society is the ultimate aim. Party contributors seek a return on their investment for their unions, their corporations, or their other factions that overpower and supersede the influence of citizens.
The Steady Improvement of Government
Governments should be steadily changed and improved, not replaced wholesale. They can be compared to a computer operating system getting constant upgrades that improve functionality and remove viruses. A highway system is one of the best functioning social systems in the United States, because it is designed so that all people can use it, and so they get to their own desired destination as safely and efficiently as possible. Unfortunately, this is no longer the case for the U.S. government which was designed in a way that all people could equally pursue happiness safely and with the least encroachment of government or other parties on that pursuit.