With the death of the chief justice and the prior appointment of John Roberts you might wonder why it should all matter to you. Well this article reposted here with the author's permission should help make things more clear.
They have a podcast and one I enjoy listening to.
Well, the floor of the Senate is about to heat up with sex, sex, sex. Homosexual sex, pornography, abortion after casual sex, sodomy of all kinds, use of contraceptives and sex toys. Washington is about to become lewd, lascivious and downright raunchy. It may even get into S&M. All thanks to that filthy amendment fourteen. Yeah, that's right. We're going to talk about fourteen. Put the kids to bed, and turn the lights down low.
While the First Amendment is the popular one -- the one you bring up when you're friends tell you to shut up already, or when public school boards start quoting Deuteronomy -- the Fourteenth Amendment is the one we invoke when we want to do something so nasty that the law forbids it. Okay, the amendment does more than that, but you've got a jog button on your
So what's so interesting about the Fourteenth Amendment these days? Well, I predict that you are going to hear much about it over the next few weeks as the Senate Judiciary Committee debates Bush's appointed nominee or nominees for the Supreme Court vacancy that's been announced, and for any others that are on the horizon.
Back in 1991, I had pneumonia and was laid up while Anita Hill and her former colleagues were being grilled by the Senate Judiciary committee. I don't know who had the worse week, me, Clarence or Anita. For those who remember that tawdry moment in American judicial history, Clarence Thomas was nominated to the Supreme Court by George Bush the Elder, when up from Thomas' past came a woman who claimed that he sexually harassed her when they worked together around ten years previously.
What followed was an inept attempt by senators to have a useful discussion about the allegations. The committee held hearings for a week grilling Hill and her colleagues about when Thomas may or may not have made a lewd remark, and whether the remark was original to him, or taken from a book, or Hill's imagination. The phrase "private parts" was uttered often that week. How degrading. Not because senators had to stoop so low, but because they were afraid to say "penis," "pubic hair," "sex organs" or other more accurate phrases. But it was also degrading because it was so unnecessary.###
What the Senate's Judiciary Committee should have done was to simply ask, "These are serious charges, but do we see a tendency for Thomas to either act in this way, or for this kind of personality flaw to corrupt his legal judgment or authority?" I'm not excusing sexual harassment, but simply acknowledging that he-said, she-said contributions to a job interview can be better handled than by entertaining accusations and refutations. Ironically, Thomas' appointment to the Supreme Court was to replace Thurgood Marshall, a notorious womanizer. Marshall and William Douglas, both notorious Supreme Court Justice womanizers, served the liberal agenda quite well. What was the sudden problem with womanizing in the Supreme Court? Politics, of course. Prurient opportunism from the left.
Now, come on. You didn't think the left was above the fray, did you?
But aside from that, the Senate showed us that week that they do not know how to talk about sex. This is not so good when you realize that much of what we are most concerned about in the Supreme Court these days is about sex and morality, and the foundation of much of the dirty talk is located in the Fourteenth Amendment. What they didn't understand then, and I'm afraid they'll screw up again, is that in the court, sex issues are not really about sex, or shouldn't be. They are more likely about how legal technical logic is used to reinforce moral imperatives. In other words, what tricks does a judge have up her or his sleeve that helps them bend the Constitution to their will?
So what's so sexy about the Fourteenth Amendment, you ask? Well, I'll walk you through all that, and believe it or not, you'll soon be able to dash off phrases like "substantive due process," "equal protection" and "changing scope of 'liberty'" like they were part of decent language. In fact, you will appear downright desirable to anyone who finds such language to be a turn-on.
The Fourteenth Amendment, arguably, creates the courts' best opportunity to exercise an over-sized influence of government power. In part, I'd say, the Fourteenth Amendment is what makes most Americans afraid of a judge who is "too liberal" or "too conservative." It used to not be that way.
After the Civil War, the United States Government had a few issues they needed to fix within the Constitution. They needed to abolish slavery, announce that regardless of a person's color, they were entitled to the right to vote, to representation in government, and to the rights and liberties guaranteed by citizenship, and that no state could abridge the liberties of citizens.
When the Fourteenth Amendment was passed, Congress impressed a few new legal points on the Constitution, three of which are stated as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Sounds perfectly clear, right? And sexy. Don't forget sexy.
All right. It sounds pretty dry, but the sex comes in depending on how you define the words, "liberty" and "equal protection of the laws." The latter is only dirty by implication, but the word "liberty" is downright saucy, so let's start with that one.
The word "liberty" to many in the late 19th century meant freedom of movement or of business conduct. Government could deprive someone of liberty by jailing them, or interfering with a business contract that they freely engaged in. But, hey, if liberty means anything at all, doesn't it mean that we just need to be left alone from government? Doesn't liberty mean that unless the government can show some compelling reason to stop me from doing anything, like watching porn, handing out contraceptives, having sex with guys and girls at the same time, then they should just leave me alone?
Well, I think so, but let's face it. Sex is a powerful motivator, so maybe my logic is clouded by desire. Maybe I need a more sober mind to think through the real meaning of the word "liberty."
Enter Antonin Scalia and his compatriot, Clarence Thomas, the two Supreme Court Justices who try most to adhere to "original meaning" when trying to understand the text of the Constitution. When legally minded people describe Scalia and Thomas, they use terms like "Originalist" or "Constructionist" to describe them. Scalia and likely Thomas, will tell you that regardless of the label that you use to describe them, they feel that the courts should not have too much power. Surprised to hear that? Although Scalia is very interested in a society that fits his moral strictures, (he does describe himself as a "law and order kind of guy" and a religious conservative, and he is a member of the ultra-conservative Opus Dei order of Catholics) he does not want to be the person who imposes that moral stricture on the American people, nor does he want his colleagues to impose their moral strictures on us. Directly, that is.
What I have said runs counter to what a lot of Scalia's critics say about him. "Nino tries to prevent abortion and homosexuality and use of condoms and and and . . . "
But I think not. At least directly.
Scalia (along with Thomas, the less celebrated of the originalists on the court) has an understanding that the courts are limited in their power by the US Constitution to determine the constitutional permissibility of laws and the application of law when it is in question. Courts may not innovatively find new ways to interpret or approve of laws in ways that are not passed by or intended by Congress. The Constitution and relevant contemporary texts, claims Scalia, provide courts with profound power, like declaring some laws or procedures unconstitutional. But that power, Scalia believes, should be limited to a narrow, if powerful, scope.
So when Texas had a law that forbade flag burning in the 1980s, and a person was convicted of the crime, Scalia reminded us in Johnson v Texas that Texas law was unconstitutional because it violated Johnson's right to free speech. But if Congress created an amendment to the Constitution forbidding the burning of the flag, then Scalia's decision would have been opposite. Johnson would have been wrong to burn the flag, and Texas law would align with the Constitution nicely. But either way, Scalia hates flag burning. See the lesson here? He does not want the Supreme Court to impose their moral will on the US; just their judgment on the constitutionality of laws and legal procedures.
I side with Scalia on this. I like when government has little power, and I like when everyone knows their place in government.
Others, including some members of the Supreme Court, believe it is imperative for appellate judges and Justices to also make sound judgments on the wisdom, effectiveness or beneficence of laws under their review. Certain pragmatist judges, like the notable Richard Posner, use social science and economics research to give them a utilitarian judgment on law to decide whether it is good or bad for society. These fiercely rational and intellectual people are well minded, but they drive me nuts. Article III of the Constitution is very brief, and it gives little description of what the procedures and intellectual grounding of judges must be. But that gives me reason to think that the short list of judicial powers means that there is no more that a judge can do. Many judges believe that a short list gives them lots of discretion to decide what to do. Conservatives call these folks "activist" judges.
But of the three articles that describe the powers of the branches of government, the first, describing the power of the legislature, clearly gives Congress the power to create laws. And as the separation of powers was the fundamental theory in the Constitution, then the courts were clearly not intended to create laws, so must be modest in how they exercise their power.
So how is it that Nino Scalia has a reputation for being such a hard case conservative? And how is it that he doesn't see it that way?
The answer is in that hot and spicy Fourteenth Amendment. When Scalia and Thomas see the word "liberty," they want to know what it meant when it was written in the late nineteenth century. After all, Congress was using their meanings, not ours. If we impose our meanings on their words, then we hazard a court that creates new laws that the legislature has not intended, thus giving the courts too much power.
But many people, including me, think the word "liberty" cannot be held to a specific time, because that is somehow opposite the meaning of the word "liberty." Can you imagine, even today, listing all the things people should be free to do? Can you imagine that list never changing? Liberty, if it means anything at all, means that individuals decide what they want to do, and they do it.
Let's take this hypothetical: A woman decides that she wants to wear a man's tuxedo in public. Her town thinks cross-dressing is a disgrace and they pass a law prohibiting a woman dressing as a man and vice-versa. She sues and the case goes to the Supreme Court. Scalia would say, "Stupid law, but when the word "liberty" was written into the Fourteenth Amendment, cross dressing was not within the American tradition, so it is not be included as a right protected in the Fourteenth Amendment. People like Justice O'Connor, however, would likely say, "Stupid law, and if the city or state cannot show a compelling interest in upholding the law, let's trash it. Cross-dressing is hurting no-one, why should the government restrict her actions?" To people like O'Connor and me, the word "liberty" means that the people decide.
So while the court must be reserved in its powers, -- and creating new interpretations of laws interferes with legislative powers -- the word 'liberty' is at the core of the American experience and mission, and should be construed as one that the people define by their actions, as long as they do not interfere with a demonstrable and compelling state interest. Would we ever say that our interest in preserving liberty only extends to what we can now imagine, and should not include those actions that we have not yet considered? What a weird definition of 'liberty' that would be.
So then what makes Nino a conservative judge? His socially conservative morality, or his philosophy of a restricted court? Both, really. One enables the other. This is how Scalia and Thomas occasionally impose a conservative social view on the US. Indirectly, through a sound and admirable judicial philosophy. In fact, isn't this the root meaning of the word conservative?
When the Senate gets involved in the confirmation of the Supreme Court nominees, they will need to invoke this aspect of the Fourteenth Amendment, and plenty. They will be talking about abortion, which was justified by the "liberty" clause for Roe v Wade, they will leave contraception, pornography (for now, anyway) and sex toys to the dust bins of history. But "equal protection" and "substantive due process" will also be hot topics.
When the Massachusetts Supreme Court last year decided that state laws preventing same-sex marriage were unconstitutional, they invoked the Fourteenth Amendment. See? You just can't separate sex from that naughty amendment, can you?
They had excellent grounds to do so, too. There was very compelling, and very interesting, precedent. The Supreme Court heard a case in 1969 called "Loving v Virginia." It's about inter-racial love. What Spike Lee called Jungle Fever. In 1969, a black woman and a white man asked the Supreme Court to intervene in their case. The state of Virginia treated as criminal their marriage that they had obtained in another state. Virginia had laws against inter-racial marriage, see. Virginia contended that there was nothing racist about their anti-miscegenation laws, because they allowed blacks to marry blacks, just as they had allowed whites to marry whites. Equal protection under the law.
However, the Supreme Court held that the law was racist, because it prevented a black woman from doing what any white woman could do; namely, marry a white man. Novel, huh? The "equal protection under the law" phrase becomes really sexy now, doesn't it?
Perhaps the concurring opinion of Justice Stewart summarized the Court's argument best. "I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' Because I adhere to that belief, I concur in the judgment of the Court."
Originalists believe that Loving v Virginia is an "activist" interpretation of the Fourteenth Amendment. "Activist" meaning that the courts are getting involved in legislation by making new rules, when only Congress has that power. There was never a tradition in Virginia of whites and blacks marrying each other. Stupid law, but it's up to the legislature to change it. Again, I have a strong sympathy for this restraint, but why in a free society would we tell our courts that they may not find unconstitutional such a clearly intrusive law when Virginia had no compelling interest in anti-miscegenation laws other than preserving racist values.
This is an excellent example of the fundamental disagreement in the courts about the "equal protection" clause of the fourteenth amendment. Understanding this contention is important today, because when you take Justice Stewart's concurring opinion from Loving v Virginia and change the word, 'race' to 'sex,' you have justification for same-sex marriage. After all, what state can show a compelling interest in preventing a woman from doing what any man can do; namely, marry a woman? The state of Massachusetts could not effectively demonstrate that interest last year, so now same-sex marriage is allowed in that state.
I say this was a constitutionally sound opinion. Scalia disagrees.
Conservative judicial restraint serving conservative social philosophy.
But remember, that same judicial restraint caused Scalia to side with the plaintiff in Johnson v. Texas, stating that flag burning must be protected by the First Amendment, protecting an act that he found deplorable.
So the definition of "liberty" will come up on the Senate floor, if all goes well, and the breadth of "equal protection" should be contentious.. But briefly, one last phrase will come up for sure: "substantive due process." This is the notion that when invoking the due process clauses in the Fourteenth and the Fifth Amendments, courts need to decide if both the legal procedures in question were handled within Constitutional requirements, and that no other rights were violated in the case. Let's just say that it puts too much stuff into one requirement as far as some are concerned. It's too convoluted, contrived and invented by judges out of their own imaginative heads. And to those who care about language and know legalese, the phrase "substantive due process" makes no sense and hurts their ears, like fingernails on a chalkboard. Advocates for substantive due process don't like when a judge says to a defendant, "sure the law is unjust in itself, but we convicted you of it fair and square." That's pretty obnoxious, isn't it?
I hope to see the Senate not get caught up in whether they like abortion or not, whether they like gay sex or not, or any other sexy nonsense. There is no need to get involved with any of that. They should just ask the nominees to talk about the Fourteenth Amendment and see if they are comfortable with their responses. I have rational sympathies for the conservative response. I have a patriotic sympathy for the liberal response.
In short, the Constitution of the United States is an astounding document. It is elegant in so many ways. But a major weakness that comes up every so often is that even though the courts were designed to be isolated from politics, the judges who run the judiciary are appointed by political people. Let's hope that the Justices they select rise above this weakness.