Defining a nation

Few weeks in modern US history have been as momentous as this last one. It saw two events that are likely to have a huge impact on the way Americans see themselves and how they are governed.

First, there was Katrina. The whole country, the whole world, has watched in disbelief as a great American city seemed to go the way of Atlantis and the mightiest superpower appeared unable to do anything about it. Federal, state and local authorities were all found to be lacking, and the billions invested into homeland security since September 2001 seemed to have added little to the nation’s ability to cope with a predicatable and predicted disaster.

But for this post I want to concentrate on the second event of the week, one that will have repercussions for decades to come, in all likelihood long after the Gulf Coast has recovered from the ravages of Katrina.

I write of the death of the Supreme Court’s Chief Justice, William Rehnquist, and of the subsequent nomination of John Roberts to be his successor.

Constitution country

Few, if any, Western countries are as devoted to their constitution as the United States. Britain, famously, has never got round to writing its constitution down, while other countries usually wrote theirs after a time of national disaster or crisis.

The United States’ constitution, however, is pretty much unique in having defined the nation at its very outset. One might say that before the constitution there was no USA. Wherever you are on the political spectrum here, from evangelical conservative to West-coast liberal, support for the constitution is likely to be the one thing that unites you.

With one caveat. One major caveat. The lessons the evangelical conservative draws from the document are almost certainly diametrically opposed to the lessons drawn from the self-same text by the West-coast liberal. Hence the importance of the Supreme Court, whose role it is to reveal the ‘true’ meaning of the text.

My self-evident truth is your self-evident nonsense

Truth, however, has turned out to be a slippery animal. The uncontested interpretation of the constitution of a century or so ago would have made it impossible for laws on national employment rights, sexual discrimination or indeed pensions to be passed. The same constitution that once allowed racial segretation was suddenly found to forbid it, despite no change in the constitution’s wording.

As the century progressed, the constitution was found to contain things that had previously remained hidden, such as the right to vote and the right to privacy.

Judges are, of course, political appointees in the US, and over the years Presidents of all colours have sought to build the Court in their own image. And as appointments are for life and judges can and do carry on working into very old age, decisions made now have an influence that stretch into the distant future.

For the last few decades, with increasing Republican dominance of the executive and legislature in Washington, DC, the court has been moving steadily rightwards. The new appointments expected over the coming months to replace Judges Rehnquist and Sandra Day O’Connor, who retired earlier this year, will most likely continue this trend. The implications for American politics could be profound.

The more fundamentalist view of interpreting the constitution is now very much in the ascendancy: the view that we must go back to its original meaning, and not interpret it in the light of current mores (the parallels with the different strands of Christian thinking is striking).

Of course, as the constitution fails to mention things like the Internet, lie detectors and genetic screening, there is a limit to how far this fundamentalist view can be applied.

The States versus the states

Few issues have historically enflamed such passions amongst the political classes here as the arguments about states’ rights. What issues are off-limits to the federal government, and what should be left solely to the individual 50 states? Both sides have fought over this issue. The left wanted to limit the rights of states to decide their own business when the issue was racial segregation. Similarly, many on the right want to deprive states such as Massachussets of the right to legalise gay marriage. The most blatant example over recent months was Washington’s grotesque and disturbing involvement in the Terri Schiavo case – an involvement that was given short shrift by both the Supreme Court and US public opinion.

One of the most vocal proponents of states’ rights is current Justice Clarence Thomas. He has stated publicly on numerous occasions that the constitution is limited in its application to the individual states. Take, for example, the famous first amendment:

Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Clear as day, no? Not quite. Justice Thomas argues that the first amendment does not give the right to free speech: it merely prevents congress from passing laws to limit it (which is, after all, what it says). If, say, South Dakota were to pass a law establishing Buddhism as the official religion, closing down newspapers it did not like and banning all public demonstration, this would not necessarily be anti-constitutional, as the constitution only refers to the actions of congress.

Such a view, even amongst right-wing jurists, is still very much marginal and runs counter to the dominant traditions here. But it is growing in influence, and its impact on American life could be profound.

Revisiting old decisions

One of the numerous elephants in the room is, of course, abortion. Abortion has been a constitutional right here for over thirty years, ever since Roe v Wade. The court sees it as being covered by the ‘right to privacy’ I mentioned above. The likely new chief justice, John Roberts, is known to be personally against abortion, and has cast doubt on the existence of the ‘right to privacy’. Is the overturning of Roe v Wade likely? Don’t hold you breath. Roberts has already described Roe v Wade as being ‘the law of the land’ and the court may well, for the time being at least, baulk at the thought of admitting that its most famous ruling over the past half-century was a mistake.

Abortion, in any case, although a huge issue here, is not quite the dominant legal theme that the European media likes to portray it as. The constitutional question that is most exercising the US public at the moment is a recent ruling on the Fifth Amendment.

Pleading the fifth

The Fifth Amendment is possibly the most famous outside the US. It guarantees the right of defendants not to incriminate themselves. Well, that’s what it’s famous for, in any case. But the amendment ends with another crucial line:

nor shall private property be taken for public use, without just compensation.

Recently, the court heard a case brought by residents of the town of New London, Connecticut. The local authority wanted to seize their property in order to demolish their houses and sell the land to a private developer to build plush new condominiums. The ‘public use’? The richer inhabitants of the new housing would pay more taxes. The residents claimed that this was far too loose a definition of ‘public use’. The court, to the surprise of many and the outrage of some, found in favour of the local authority.

This case has united left and right. The left sees it as a charter for big business to bully local authorities into seizing property (mostly from the poor) for purely business ends. The right sees it as an attack on that most American of values: the right to own property unmolested by the state. The court, on this issue at least, finds itself with few friends.

Outlasting Bush

Over the coming years, the Supreme Court will tackle some of the most crucial issues in America: affirmative action, campaign-finance legislation, environmental regulation. The appointments to the bench over the coming months will continue to decide the nation’s fate long after Bush, his successor and even his successor’s successor have settled into the complacent calm of political retirement.

  1. Blimpish said:

    Good post. One of the points that you could add, though, is that the big question over future conservative justices is whether they are legal positivists in the mould of Rehnquists and Scalia, or those like Thomas, more open to natural law arguments.

    If the Thomas type becomes stronger, then the Court could fall into deep conflict (for better and/or worse). For me, the most powerfully liberal justice has probably been Kennedy – a free-market libertarian, on the Right for economics, but one whose opinions in culture war cases (Planned Parenthood at the start, but Romer or Lawrence more recently) have often made the running for the Left. And Kennedy’s a natural law man too, but in an extremely different way to Thomas (“at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”)

    This is especially important given the abortion situation. As you allude, Roberts seems to hold to stare decisis on abortion (although Planned Parenthood more than Roe, now – which is wise, given Roe’s reasoning can only be explained by the level of acid in use in the early 1970s); as did Rehnquist, and as does Scalia and (I think, so far) Thomas. If the conservative justices move towards more of a natural law position, stare decisis has its limits – if manifestly unjust, a previous precedent must be struck, after all. And remember, that in his dissent on Lawrence, even Scalia – a hardline positivist – raised the point that if stare decisis could be struck there (to justify striking down a state sodomy law), then why not elsewhere?

  2. Hence the importance of the Supreme Court, whose role it is to reveal the ‘true’ meaning of the text [Constitution].

    That is not to say that such truth is absolute. The Supreme Court is not bound by precedent, but only by the Constitution, and has reversed previous decisions on several occasions. This can be demonstrated best by quoting Chief Justice Hughes (1930–41) who famously stated:

    We are under a Constitution, but the Constitution is what the judges say it is.

    Concerns about changing the balance of the Supreme Court are not new or restricted to Republican administrations as FDR‘s plan for reorganising the Supreme Court in 1937 attests. Currently, with the present administration and Congress, a literal interpretation of the Constitution is in vogue but once a judge has been appointed to the Supreme Court for life, the restrictions and exhortations of politics tend to weaken.