Undermining the U.S. Supreme Court: Non-Jurisprudential Ideology and the U.S. Constitution

As in the case of the Roman Empire, which internal corruption likely weakened and even destroyed centuries after that empire had been a republic, modern republics are also not immune from internal decay. Even though political corruption can go under the radar, especially if systemic rather than merely episodic or around particular office holders, the subtle, gradual impact can be just as destructive than had Carthage defeated Rome’s general, Skippio Africanus, in north Africa. Making subtle decadence all the more embarrassing is the fact that it can be right under the noses of upstanding office-holders. I contend that this is the case with Chief Justice John Roberts of the U.S. Supreme Court.

In his annual report in December, 2024, Roberts “slammed what he described as ‘dangerous’ talk by some officials [in the two other branches, or arms, of the U.S. Government] about ignoring court rulings,” as that could result in a judiciary that is less than independent of the legislative and executive branches and their respective members.[1] Both Republicans and Democrats had “hinted at ignoring rulings in recent years.”[2] To Roberts, that every presidential administration “suffers defeats in the court system—sometimes in cases with major ramifications”[3]—is the main reason why some presidents, including Andrew Jackson, have been tempted to leave it to the high court to enforce its rulings rather than rely on the executive branch. But this explanation ignores something else—something just below Roberts’ nose.

Even as Roberts “lamented that ‘public officials’ . . . had ‘regrettably’ attempted to intimidate judges by ‘suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” the chief justice dismissed the claim of political bias as “inappropriate.”[4] I submit that the claim has sufficient basis to be taken seriously, and, furthermore, that it goes beyond questions about the ethics of particular justices, such as Thomas’ acceptance of vacations and Alito allowing his wife to fly a right-wing flag at one of their houses.

Proverbially with a straight face, the chief justice wrote in his 2024 year-end report that the role of the judicial branch is “to say what the law is.”[5] I submit that the justices do more than that. Just in the media referring to “the conservative 6-3 majority” contains the implicit assumption that there are indeed conservative and liberal justices and that such labels go beyond referring to jurisprudential hermeneutics (i.e., approaches to interpreting the U.S. Constitution) and even what opinions on what law itself is. Emphasizing what the words in the document meant in 1787 versus what they mean today, or privileging the original intent of the delegates at the U.S. Constitutional Convention versus interpreting the text in terms of the modern world are just two examples of how the words conservative and progressive (or liberal) could appropriately be applied to court justices in a way that delimits the extent to which their ideology can play a role.

I submit that when Justice Sandra O’Conner wrote the U.S. Supreme Court’s majority opinion before the oral arguments in Bush v. Gore—the ruling that effectively gave George W. Bush the federal presidency—something more political than jurisprudential hermeneutics being applied was in play. That O’Conner had been a Republican in Arizona’s lower house from 1969-1974 may have something to do with why she subsequently wrote the Bush v. Gore opinion for the conservative, Republican-nominated majority before even oral arguments were heard.

Furthermore, that justices who were against abortion constituted the majority opinion that overturned Roe v. Wade (1973) may suggest that a non-juridical ideology played a role, and thus that those justices went beyond merely deciding what the law is to stating what it should be. That the justices who constituted the majority in the Citizens United (2010) case were conservative, and thus likely pro-business, may have meant that the nonjuridical economic ideology of free, unencumbered markets even manifesting with money being free-speech was in play.

On the other ideological side, it is likely that attitudes towards race played a role in the liberal majority’s opinion in Brown v. Topeka Board of Education (1954) that separation is not equal and thus racial segregation in public schools is unconstitutional. Similarly, the finding of an implicit privacy right in the due process clause of the U.S. Constitution in order to render abortion legal in the Roe v. Wade decision may point to an extra-judicial ideology bearing on life and abortion, and even religion, as being in the driver’s seat.

When moral, political, cultural, or even religious ideologies or beliefs are salient in a judicial decision, then the designation of conservative or liberal points to a broader judgment both as concerning the justices themselves and their respective rulings. If such broadly-informed judgment is really what the electorate in a republic should bring to voting, then the implication is that public matters requiring or even just fitting such broad judgment should not be decided by unelected justices. I submit that such deference is precisely the point on which Roberts and his court (as well as other, past courts, including that of Warren) has lapsed. Individual judges and even an entire court can thus be seen as opportunistic in short-circuiting the prerogative that actually belongs to the popular sovereign: the people. This does not mean that the will of a majority of an electorate should trample over individual rights, as a judiciary is rightfully charged with protecting such rights precisely because a majority of an electorate may act heedless of minorities, as can legislatures and even presidents; but defending rights from majoritarian tyranny does not mean or require a judge coloring beyond the jurisprudential lines on a page to impose one’s own exogenous ideology, which anyone could do—hence the deference.

That the U.S. presidency, which unfortunately has been partisan at the expense of the credibility needed to preside, nominates U.S. Supreme Court justices and Republican or Democratic U.S. Senators (and occasionally an Independent) confirm the nominees means not only that politically conservative or liberal justices can be expected to be sitting on the bench, but also, and perhaps more importantly— though unfortunately almost invisible to the naked eye—the selection process itself is culpable in essentially exporting political judgments from the American electorates to the unelected justices. In short, Americans should not be surprised at all that political ideology, infused with moral, economic, and even religious valued beliefs, has such an impact in U.S. Supreme Court decisions. The U.S. Constitution itself is biased in favor of this, and that the amendment process is itself so hard to complete means that the vulnerability to partisanship on the bench that is structural in the document is effectively intractable.

Being human, all too human, all of us would love to imprint our respective ideologies on law, whether statutory or common. So, we should all have the means to do so through the vote. Essentially, I am arguing that popular sovereignty—government by the people rather than vice versa—has unwittingly ceded too much territory to the U.S. Supreme Court under the subterfuge of an expansive notion of judicial interpretation. Ironically, there is thus a silver lining in this respect to the anti-abortion justices imposing their moral or religious beliefs in overturning Roe v. Wade because as a direct result, some state legislatures have voted on legislation bearing on abortion and even the voters in some states have been able to exercise their popular sovereignty by being able to vote directly on the matter via referendi.[6]

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1. John Fritze, “Roberts Warns Against Ignoring Supreme Court Rulings As Tension With Trump Looms,” CNN.com, December 31, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. That last word is the plural form of referendum; you can blame Latin, and ultimately the Romans whose empire fell at least in part due to corruption within. No human social artifact can be expected to last forever. 

On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

During the summer of 2023, lawyers opined on whether Don Trump is eligible to run for the U.S. presidency in 2024. It is one thing for lawyers on law-school faculties to decide whether Donald Trump, a former U.S. President as of 2023, is ineligible to run for president in 2024; it is quite another thing for the U.S. Supreme Court to make the determination; only the latter has governmental legitimacy that can legally be enforced, for the U.S. Constitution gives the federal supreme court the task of interpreting that constitution. In this case, the high court would be in the position of making decisions of fact—did Trump engage in an insurrection—and applying that decision to the 14^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

The comment made by Luttig, who had actually been a judge, didn’t stop lawyers who teach at law schools from writing as if their own opinion were enough to render the former president ineligible to run for president. Just because someone ventures an opinion does not make it so. Even lawyers who specialize on writing in the field of constitutional law are, after all, merely private citizens like the rest of us. Of course, they, along with the rest of the American electorate, could decide indirectly through voting for or against Don Trump on the basis of determinations of whether he engaged in an insurrection. There are several problems with this method.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal sense in 2023. The electorate would also have to “research”—and some potential voters put me off when I canvassed door to door by saying that they needed to research the candidates (yeah, right)—the Trumps various actions that could be considered to be insurrectionist: urging a crowd to pressure Congress on January 6, 2020 when it was counting the states’ respective ballots of electors, telling Vice President Pence that he had the authority to substitute slates of Trump electors in Arizona, Georgia, and other states, pressuring election officials in Georgia to “find” votes so Trump would win the state, and considering the use of the military on the capitol so Congress would use his slates of electors in states that he lost. Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential to the viability of a republic. They are also necessary for an electorate to apply constitutional vigor even to a candidate whom some voters like.

Secondly, letting the voters decide cannot keep Trump off any ballot prior to the election, not to mention prior to the Republican Party’s nomination process, because an election is the means by which voters would decide Trump’s fate. Former New Jersey governor Chris Kristy’s assertion, “The voters of our party are going to need to determine this question,” is neither competent nor fair to the Republic Party. An election before the election might be feasible, but then perhaps the first election would then de facto be the presidential election itself.

Deciding the matter by whatever means after the Republican Party’s convention would not be fair to the party. If election officials or a court later decide that Trump is ineligible, the party would suddenly be left, after its convention, without a nominee for president.[3] Because the U.S. Supreme Court “keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination—or even be officially nominated—only to be subsequently removed from the presidential ballot.”[4] Perhaps in such a case the Republican National Committee would be tasked with selecting the nominee, opening the door to the possibility of “back room” political deal-making and even bribes. That rather undemocratic consequence would be ironic if the people had been the deciders in a special election or referendum.

So, leaving the matter up to the voters is problematic; the matter of a nominee could ironically be decided by committee. That leaves us with either election officials acting independently of each other or all together, or the U.S. Supreme Court justices to decide. Just because some citizens claim that Trump is ineligible to run for office does not make it so. That almost all lawyers teaching constitutional law in the United States have only one—hence undergraduate—degree in law is all the more reason why their writings should not be taken as binding for election officials. Even if “the case is not even close,” as William Baude and Michael Paulsen wrote, it is not necessarily the case that, “All who are committed to the Constitution should take note and say so.”[5] Not only are articles in law reviews, whose editors are undergraduate law students, not objective analysis at least in constitutional law; such writings can be deemed political, and even instances of political activism claiming that readers should take action of a political sort.

But should election officials of local, state, or federal jurisdiction be the deciders? I contend that they should not. Firstly, if even just a few officials at the local or state level decide to exclude Don Trump, then the judgment in favor of Trump by other election officials would be impaired because he would not be on the ballot in every locale or state. It would be extra-constitutional (i.e., outside of the constitution) should all of the officials in the U.S. vote on whether to exclude him, for all of the officials, as a group, are not organized as a group constitutionally. Secondly, election officials do not necessarily have expertise on what exactly constitutes insurrection. Thirdly, they would inevitably be sued, whatever they decide, so the U.S. Supreme Court would be the final decider anyway.

An alternative way that the high court could wind up deciding on Trump’s eligibility would be deciding the inevitable appeal that would be made if Trump will have been found guilty of insurrection by a jury. It is significant that Trump had not been indicted on the charge of insurrection even though 91 charges were leveled against him as of August, 2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department, would have charged the former president with insurrection had evidence existed to support that particular charge. Unlike the lawyers who teach in law schools, Smith had a formal means—a grand jury and a court with a judge—to make the charge, and he did not. Smith also had access to the evidence, which lawyers in law schools did not have. So, it is odd that the lawyers who claimed that Trump had engaged in an insurrection did so knowing that Smith had decided not to level that charge. Even stranger would be such a lawyer presuming that one’s opinion, whether in an interview or argued in an article in a law school’s undergraduate publication, is sufficient for election officials to keep Trump off their respective ballots.

In short, it could be argued that because Trump has not even been charged with insurrection, he cannot be found to be ineligible for office based on insurrectionist activities. It could also be argued, however, that the inclusion of insurrection in the 14^th Amendment is a political rather than a judicial matter. Under this reading, Congress could pass a law—rather than using the word insurrection for January 6^th in an award given to three Capitol Hill police employees—declaring that Trump engaged in an insurrection, and the high court would decide the inevitable constitutional challenge in court. But unlike impeaching and removing a president from office, no constitutional language supports applying the political process of how a bill becomes law.

Of all the chatter by experts and non-experts alike, the fact that Jack Smith did not charge Don Trump with having engaged in an insurrection is most salient to me in this case. To be sure, the U.S. Supreme Court justices could find that if he is found guilty of any of the existing charges bearing on January 6^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  The “finding” of votes, such as probably happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption in American politics, however. Even so, the justices could find on their own that Trump is guilty of fomenting or agitating an insurrection. The justices would need a suit to be brought to the court, however.

The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.

American religion and politics: Overreaching Realms

Even though they are formally separated in the U.S. under the constitutional rubric that the federal government cannot lawfully establish a religion and infringe on the free exercise of religion, religion has ventured into politics and vice versa. Valued ideals pertain to both even though the highest in religion are transcendent, meaning that they extend beyond the limits of human cognition, perception, and sensibility, according to St. Denis (aka Pseudo-Dionysius) in the sixth century. So far is the political variety from such ideals as being in heaven! Yet the political sort has enjoyed a near monopoly in the world, including its public discourse. At least as 2019 was giving way to a new decade, captivation on President Trump’s tweets (i.e., brief statements made on the internet’s social media) and the process of impeaching him in the U.S. House of Representatives was strangely devoid of any religious discussion in the public square. This is all the more extraordinary because of the significant role that religion had played historically in presidential politics.

During the U.S. presidential campaign of 1928, for example, Al Smith was chastised for being a Catholic, and therefore thought to be under the sway of the Pope in Rome. During the campaign of 1960, John F. Kennedy found himself subject to the same charge. The simple assumption of papal dictate turned out to be naïve. For one thing, the American presidency is firmly within the governmental realm, and the Second Amendment bars the use of the office to establish (or give preference to) a religion or sect/denomination thereof. Kennedy ran against Richard M. Nixon, whose Quaker background, which presumably disdained lying, turned out in his own presidency (1968-1974) to be particularly lacking as revealed in the Watergate hearings. In short, the impact of a president’s inner religious sense and identity on his conduct (and mentality) can be massively overstated.

The role of religion in politics has been present, however, in reactions to the assumed, overstated impact of a candidate’s religion on his role should he get to the office. For example, based on the overblown fears held by protestant Americans, some protestant leaders, including Jerry Falwell and Billy Graham, and their allies in the political realm were able to gain popularity and power. Graham secretly met with other protestant pastors in 1960 to coordinate campaigning against Kennedy, essentially capitalizing on the popular fear among Protestants. This movement in turn prompted Kennedy to give a speech on September 12, 1960 to the Houston Ministerial Association. He insisted that his Catholicism would not direct or obstruct his policy-making judgment. Interestingly, the push of religion into the political sphere was made by religious figures ostensibly in the religious realm—overextending into the other realm.

In 1980, however, a presidential candidate by the name of Ronald Reagan realized that politicians like himself could make use of the political lobbying of religious leaders and groups. Implicitly, he showed Americans just how trivial the political divide had really been between Catholics and Protestants in presidential politics. While Reagan was still the governor of California in the 1970’s, Phyllis Schlafly, a Catholic, was reaching out to evangelical women to lobby against the Equal Rights Amendment (for women). Along with evangelical political action committees, she established the Eagle Forum in the next decade, when Ronald Reagan was president of the United States. By the time he was in office, he had already realized that he could publically galvanize evangelicals and conservative Catholics to support his political ambitions.

With the political realm dipping into the religious realm and vice versa, the societal issue of abortion also played an important role at the time in uniting socially conservative Protestants and Catholics. After the U.S. Supreme Court’s ruling in Roe v. Wade in 1973, Francis Schaeffer brought in prominent evangelicals including Jerry Falwell to oppose abortion politically. Gay marriage in the early 2000’s would play a similar role in uniting the division that had hitherto hampered Al Smith and John Kennedy. James Dobson’s Focus on the Family and the Family Research Council, which had formed in the 1980s during Reagan’s flourishing years in office, pushed what they publicized as family values against both abortion and gay marriage. Both Focus and the Council were both church-related and lobbyists close to the Republican Party. For example, the groups lobbied for conservative fiscal policies—something near and dear to the Party but less obviously based in Christianity, especially as Jesus espouses giving to the poor and giving up one’s wealth to follow him. The rich man getting into the Kingdom of Heaven is like getting a camel through a needle. Even so, the evangelical lobbying groups became wealthy, using the prosperity gospel from the Old Testament—that God would make Israel prosperous if it keeps the covenant—as a rationale. To be sure, the pro-wealth paradigm had long become dominant over the anti-wealth paradigm, which hitherto had been dominant.[1] Perhaps this shift within Christianity made it easier for evangelical/Catholic political groups to not only pursue wealth themselves, but also appeal to the Republican Party that Reagan had made (i.e., fiscal and social conservatism). 

 

In conclusion, Americans could look back by the end of the twentieth century and see the old religious division as politically artificial, and thus not nearly as important as Americans had believed in 1928 and 1960. But could those same Americans see their contemporary divisions as just as artificial or at least over-drawn? In the Middle Ages amid the Commercial Revolution, the sin of usury (i.e., charging interest on loaned funds) was the moral/religious/political controversy in Europe. By Reagan’s time, the charging of interest even on consumption loans was a dead issue, whereas abortion could be viewed as an extremely important matter. Could this presumed overriding importance of the issue of the day be questioned by looking back at how the salience of the usury debate had run its course in its own time? In other words, in matters of religion and politics, and even their intermeshing, can the human mind put even its most cherished ideals in proper perspective? Can we question our own presumed importance, including that of our ideological ideals, whether religious or political (or both!)?

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1. Skip Worden, God’s Gold (1915), available at Amazon.

Hobby Lobby: On the Significance of the Case

For all the controversy stirred up by the case of Hobby Lobby v. Sibelius(2014) on whether an employer must comply with the mandate for contraceptives coverage in the Affordable Care Act, the significance of the decision handed down in a 5-4 majority opinion by the U.S. Supreme Court may be less than some commentators were predicting. 

As evangelical Christians of the Southern Baptist section, the Greens did not object to 16 of the 20 contraceptives mandated for employer coverage in the Affordable Care Act. Indeed, fundamentalist Christians “largely support the use of birth control by married couples.”[1] The Greens considered Plan B, Ella, and two intrauterine devices as tantamount to abortion, in that the means prevent a fertilized embryo from implanting in the womb.[2] Blocking implantation would “terminate life,” Green argued. “We won’t pay for any abortive products. We believe life begins at conception.”[3] Ending human life after that time, Green wrote in an open letter, is "something that is contrary to our most important beliefs."[4]

Arguably, a Hobby Lobby check to the company’s insurance company for the employee health plan pays for the plan itself, rather than for particular items that the insurance company pays for when a medical practitioner prescribes them for employees. In other words, it is the insurance company’s business, literally and figuratively. Even so, Steve Green would undoubtedly have felt blameworthy morally and religiously had he not explicitly excluded the offensive medical products from the plan for his company's account, for without his decision abortions would occur. Yet here too are several problems, which effectively mean that the significance of the case has been blown out of proportion.

Firstly, killing a few human cells may be immoral to some people, yet is the practice irreligious in nature? Theologically, the Creation is not the same as the biological process by which a human being begins. Furthermore, Jesus is not represented in the New Testament as prohibiting abortion, even though he did include other moral teachings in his preaching. Steve Green may have been conflating a theological doctrine with a moral principle and a biological process.  Put another way, abortion can be reclassified as a moral issue, in which I suspect it would be easier to come to a compromise, societally.

Secondly, Steve Green's labeling some contraceptive devices as means of abortion is a subjective call. Is preventing a fertilized egg of a few cells from implanting on the wall really like killing a fetus? Relatedly, as Green points out, even those abortive instruments are just a subset of contraceptives. The notion that the company’s health insurance plan for employees excluded or would exclude the pill (as distinguished from the “morning-after pill) is thus a popular misconception. That is to say, the claim that the ruling means that women working at Hobby Lobby would not have contraceptives covered is incorrect, so the importance of the court’s decision likely escalated beyond merit in this respect too.

So too, the breadth of the closely-held corporation limitation in the ruling was immediately debated, with Ginsberg predicting in her dissent that the door would eventually be open for virtually any company with any sort of religious conviction to use the ruling to obviate a law that the executives or majority stockholder do not like. “Although the court attempts to cabin its language to closely held corporations,” she wrote, “its logic extends to corporations of any size, public or private.” She added that corporations could object to “health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work.”[5] However, Alito wrote that the Religious-Freedom Act applies only to closely-held for-profit corporations run on religious principles. To be sure, wriggle-room exists even within this delimitation, for Alito wrote that those corporations would be unlikely to prevail if they object even on religious grounds to complying with other laws than the Obamacare mandate.[6] What is unlikely to Alito is not necessarily so to other justices, as it is a judgment call. Even so, Ginsberg's leap to any for-profit corporation seems to be untenable given the explicit delimiting stipulation in the majority opinion. 

So it is vital that the controlling small group or family of owners apply principles from their religion to their commercial enterprise. Without the separation of ownership and control that is typical of a large corporation, a closely-knit group or family of owners can indeed orient their company to religious as well as commercial purposes. Hence the Greens referred to their business as a matter of stewardship.[7] This situates their commercial objectives within a bubble of religious aims. Adam Smith situates his Wealth of Nations within his theory of moral sentiments; religious sentiments can also serve as a buffer.

On opening Hobby Lobby, Steve Green's father declared its Christian principles. Like Chick-A-Flick, the stores would be closed on Sundays “to allow employees time for family & worship”—according to a sign on the front doors.[8] The Green family’s foundation, whose funds presumably have their source in Hobby Lobby, extends charitable gifts to gospel outreach efforts as well as social services in Oklahoma.[9] A court would presumably want to find such evidence of religious claims in action, as well as assess the salience of the aims relative to attention paid to commercial objectives. To the extent that those agendas contravene the cited religion or religious principles, the case for religious exemption is undercut. 

It follows that the ruling hangs on the manager-owners' religious objectives, with strong control element rendering the company as an instrument. So I think the nexus being situated at corporate legal personhood is misplaced, even if Alito does make use of the doctrine. In her dissent, Ginsberg makes the point that human beings are religious. The "exercise of religion is characteristic of natural persons, not artificial legal entities."[10]

Alito comes closer to this point than many people realize, for he links Green's religious objectives to the doctrine, writing that a "corporation is simply a form of organization used by human beings to achieve [their] desired ends. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."[11] In the case of a closely-held corporation, the corporation is an extension of the will of the few who both own and control. Similarly, my (limited) bank account does not itself enjoy religious rights, but I can use it (because I control it) to fund religious causes by writing checks. Put another way, the sum as more than the parts applies to corporations that have many stockholders because none of them controls their respective corporation as an extension. 

Therefore, even though Alito’s majority opinion is based in part on his interpretation of a corporation as a legal person, the exercise of religious freedom goes through the corporation as an extension rather than being based in the artificial person itself; that is, the closely-held caveat implies that the operative right was being exercised by Steve Green and any other close owners. Their specifically religious imprint on the for-profit company—that is, using it for religious as well as commercial purposes—means that they, rather than the company itself, are the source or basis of the religious agency that extends itself through the corporate structure extending beyond their fingertips. 

It follows that the hiring process should include explaining to the prospective employees that they too would be part of that extension. Hence, Green has stressed that the “greatest misconception” about the case “is that we are trying to impose our religion on these workers or others. Not at all! That would violate our religion to do that.”[12] As he saw it, anyone agreeing to work for Hobby Lobby knows of, and agrees to, the dual purposes of the closely-held corporation. Perhaps part of the problem is that Green’s hiring subordinates did not make this point clear (without discriminating, of course).

It could also be argued, however, that the anti-abortion stance is not a fundamental or important Christian belief. After all, Jesus does not even mention the issue in the New Testament. Recall Green's statement that he applies Christian principles to his business; the implication is that those principles are important theologically. In fact, the Greens' stance may actually be moral in nature, rather than theological, as Creation can be distinguished from the biological process by which an egg is fertilized its cells multiply.  

Therefore, the stance may not actually find adequate cover under Christian auspices understood theologically. Traditionally, the Court has required that accommodations on account of the freedom of religion passage in the First Amendment be based in an established religion; claiming that your own religion or your own version of an institutional religion requires you to enact a pot-smoking ritual every night is not going to cut it. Clearly, opposition to abortion on religious or moral grounds is not frivolous or made up by individuals, but neither is the stance a central tenet theologically in Christianity. This could open the door to other claims of other religious issues whose importance in religious terms may be overblown, and thus without meriting accommodation.

Moreover, basis of Green’s case may not even be religious freedom; rather, property rights could be the underlying issue, for Steve would also have the right to orient the business to serving social causes, for example, as in the case of Ben & Jerry’s (ice-cream), even at the expense of profit maximizing. Generally speaking, the profit-maximization principle is merely the default, with stockholders of a corporation having the right to alter the aim of their combined, incorporated wealth even at the expense of profitability.

As a personal aside, I have been inside a Hobby Lobby store only two times; the first was to buy a mother’s day gift, and the second constituted my attempt to buy a candle, the melted wax I would use to make up for a deficit in a half-burnt candle at home. So I was not picky about the candle, just that I needed only one. When I saw two long, thin candles connected as if Siamese twins joined by a wick-like umbilical cord at the tip of their tiny heads, I asked the front-area manager if I could buy just one of them, as both candles were broken.

“They come as a pair!” the stern woman crowed as if blissfully unaware that they were broken.

“But they are broken,” I sheepishly replied as I held them up to give her a good look.

“Makes no difference,” she said as she walked away. Her attitude resonated with the dysfunctional culture infecting businesses and other sectors back in my hometown.

From this curt exchange, I had the impression that the Greens should attend to more pressing “bread and butter” concerns than whether the insurance company used for employee health insurance pays for a few morally objectionable medical items. All the attention and energy that the Greens devoted to what in business terms is a minor issue, and perhaps even their dual-purpose approach itself may suggest that Steve Green really is not that good at management, at least in regard to hiring and training. 

At a deeper level, I see a pattern in that both the “contraceptives issue” and the “candle issue” may both involve “making a molehill into a mountain”—that is, overdoing relatively small things and thus missing the big picture. In my case, Hobby Lobby lost not only revenue on the candle, as I left the store in disgust, but also a future customer. 

Sometimes I suspect that human nature itself contains a short-circuit when it comes us being able to calibrate the importance of matters we take to be important. Perhaps this is a matter of conceit, being all puffed up with our own determinations, as if we could not possibly be wrong. Sadly, other people can suffer needlessly as a result, and this may be a cost that is all too invisible even to the well-meaning religious among us.

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1. Daniel Burke, “Hobby Lobby: The Bible Versus Behind the Battle,” CNN, June 29, 2014.

2. Ibid.

3. Cathy Grossman, “Hobby Lobby’s Steve Green Stands on Faith Against Obamacare Mandate,” Religion News Service, March 17, 2014.

4. Patricia Walston, "Letter from Hobby Lobby Founder and CEO," Examiner.com, March 27, 2013.
5. Adam Liptak, "Justices Rule in Favor of Hobby Lobby," The New York Times, June 30, 2014.
6. Ibid.

7. Grossman, "Hobby Lobby's Steve Green."

8. Ibid.

9. Ibid.
10. Richard Wolf, "Birth Control Ruling Deals a Blow to Obamacare," USA Today, July 1, 2014.
11.Grossman, "Hobby Lobby's Steve Green."
12. Burke, "Hobby Lobby: The Bible"

Direct and Representative Democracy: Colorado on the Hot Seat

In ancient Athens as well as Renaissance Florence, direct and representative democracy co-existed. The representatives elected or chosen by lot were viewed (and viewed themselves!) as standing in for the people assembled. From a practical standpoint, it is difficult even to legislate by town hall meeting or by a series of referendums on election day. Accordingly, power in democracies has been delegated to representatives and even appointees. In February 2012, this principle, and direct democracy itself, were set to be challenged in a federal lawsuit against Colorado. In my view, the principle is valid whereas the suit is not. Direct democracy outranks representative democracy—the latter having been created not to save a people from themselves but out of sheer practicality.

Colorado's Capitol (seat of government)       Matthew Staver/NYT

The object of the lawsuit is Colorado’s 20-year-old taxpayer-controlled budgeting process known as Tabor, which requires that tax increases (and presumably spending increases) be passed by referendum rather than legislative vote. The 33 plaintiffs argue that Colorado’s Taxpayer Bill of Rights “blocks the ability and jurisdiction of the . . . Legislature to properly do its job.”[1] The rationale is that subjecting tax increases and budget figures to popular referendum usurps Colorado’s legislature’s prerogative. In the early U.S., James Madison had “pushed strongly for a barrier between the passions of the popular will and sober governance . . . through a legislative branch.”[2] Representative governance, in other words, has the benefit of acting as a check on popular passions in the best interest of the people. This objection could be obviated by requiring a revote in a year or two to make the referendum’s results final.

I submit, however, that Madison’s concern is trumped by a more basic relationship that undergirds the relationship between direct and representative democracy: that between the popular sovereign and government. Arguing on the basis of a benefit such as checking passions, for example, is not to furnish a rationale for prerogative. In other words, that the popular sovereign may not always be wise or prudent does not mean that its agents therefore trump their principals—the people. Even if an agent has expertise that his or her principal does not have, this does not, as in the business judgment rule, necessarily mean that the agent becomes the principal (and the principal, the agent). In the case of corporations, maximizing profit is merely the default—something the owners should be able to deviate from and their hired hands (e.g., executives) would be obliged to devise strategy in line with the new mission.

If, as the plaintiffs claim, Colorado’s legislature is “unable to raise and appropriate funds” and thus “cannot meet its primary constitutional obligations” under the “guarantee” clause of the U.S. constitution, it is because the principal has taken that constitutional role back, through fully constitutional means, which the popular sovereign, as the principal, has the right to do. Remember, the people as a group have delegated authority to representatives.

In other words, popular and governmental sovereignty are not incompatible. Constitutions are ratified not by the member governments, but, rather, by the people, precisely because the authority of the people goes beyond that of their agents. The popular sovereign does not have to continue even with its constitutions. Indeed, that sovereign could change any American constitution in any way that sovereign desires, as per the Constitutional Convention of 1787. We could even hold a convention proposing a totally new constitution and with its ratification the current one would instantly be dust. Remember that the Constitutional Convention of 1787 tossed out the guidelines set by the Continental Congress limiting the convention to amending the Articles of Confederation. The convention started over and invented modern federalism in the process. I raise this point only to show that a popular sovereign trumps its government—really by definition. Yet it seems that the legislators in Colorado have their arrows crossed concerning this relationship—most likely a case of good old-fashioned arrogance.

Rather than the Colorado legislature being hamstrung, it is the obligation of the dutiful agents to furnish their master, the popular sovereign, with options that do not privilege the agents themselves or their body over the principal. General tax policy and overall budget numbers decided by the popular sovereign are more legitimate than had they been decided by legislative means even if the people are stupid and willful. This difference in legitimacy exists because the popular sovereign is politically superior to its agents. It is not really a question even of getting the best policy—“best” at this level involves judgment rather than the expertise of a legislator, professional or scholar, anyway.

Instead of being usurped by agents who take themselves as principals and thus somehow illegitimate in a democracy, direct citizen lawmaking is an ideal toward which we should strive to the extent that it is practicable. The agents have too often succeeded in limiting the actual sovereign to speaking once every two or four years, and then only on the vague decisions of filling offices, leaving policy decision to themselves. All too often, this means nothing gets decided, which I submit reflects the tenuous authority of the agents to be definitive for the people. One reason why the Congressional vote on health-care did not settle the matter is because the people themselves did not have a direct say on such an important, life or death, matter. Similarly, the ongoing controversy on abortion partially reflects the “limbo” status from how it was decided (i.e., not by us, as in direct democracy).

Policies like declaring war (in a non-emergency), abortion, whether to extend a tax cut, overall deficit spending, overall drug policy (e.g., legalization), and especially constitutional amendments bearing on government should be up to the people, with the judiciary stepping in when needed to protect individual rights against either legislative or popular encroachment via majority rule. Should abortion be decided by the states? Should the Bush tax cuts be extended for all or excluding the rich? Should the U.S. get out of Afghanistan?  (Should the U.S. have invaded Iraq?)  Should pot be legalized?  Should financial regulation be strengthened or is deregulation the general principle we want to follow? Considering health-insurance, should it be by a public single-payer, a public option with private options, or exclusively by existing private insurers? Should everyone be covered or just those who can pay? The questions would have to be very basic and oriented to basic judgment calls, rather than requiring expertise; our legislators could see that it is incorporated under the rubric of the general principles decided by us.

Along this line, constitutional questions bearing on our system of government are particularly legitimate for direct decision—such as on the role of the states and whether we should have more of a federal or consolidated system. Should corporations be considered as persons, politically? Should money be deemed as “speech” politically? A degree in law is not required to make a judgment on such basic governmental questions. Even the Greek slave Meno knew geometry without being taught, according to Socrates. In fact, experts, like legislators, are properly agents of the popular sovereign, rather than being an alternative wiped out by direct democracy but somehow integral to the legislative process. Federal constitutional amendments in the U.S. could be ratified by referendums (as is already the case in some of the E.U. states in ratifying amendments to E.U. basic law). Amendments could even be sourced in referendums. As it stands, the American people have no direct say on changes to the U.S. Constitution—either in proposing or ratifying amendments. Nor do we have the opportunity to have a say on the existing planks—something Jefferson thought every generation has as a right. Would it be so traumatic were sections of the U.S. constitution forced to compete with a few alternatives, taking say one Article every four years? This is just one of many ways the American people could decide on what binds us.

Admittedly, such changes expanding direct democracy would indeed alter the nature of legislative business; it would more closely resemble what one would expect to find from agents (e.g., technical working out of broad policies already decided and working on submissions for further “instructions”). As a people, we have allowed ourselves to be hoodwinked into viewing our agents as our principals, and this is reflected in the power they have with respect to a near-monopoly on decisions. It is no wonder that the Colorado legislators feel threatened by something that is decided by others. Those legislators suffer from a rather basic category mistake: conflating themselves with their principals. Out of this error has come the representatives’ assumed false entitlement to the near-monopoly that they have enjoyed while the rest of us have been asleep. I can’t even add “at the wheel,” for we have ceded that to our driver without even supposing that we have the right—as the owner of the car—to tell him where to go. We are Ms. Daisy sleeping off a hang-over in the back seat while Morgan Freeman decides where we’ll go. We even expect him to decide, as if it were his job. We are indeed quite asleep. Perhaps we don’t deserve direct democracy?

1. Kirk Johnson, “Colorado Lawsuit Challenges Wisdom of the Ballot Box,” The New York Times, January 31, 2012. 
2. Ibid.

Europe's Political Elite Takes on Popular Sovereignty in Greece

As October 2011 was coming to an end, George Papandreou, prime minister of Greece, “stunned Europe by announcing a referendum” on the latest bailout from the E.U. and set the vote for January 2012. Shocked E.U. leaders were doubtless shaking their heads with a mix of incredulity and frustration, as they had not even been consulted on the prime minister’s proposal. Meanwhile, the yields on Italy’s bonds continued to increase, as did the spread between German and Greek 10-year bonds. The world was left to whether the Greek voters would reject their government’s austerity plans and, relatedly, whether the E.U. would augment its bailout of the state as per the agreement reached only days before the prime minister’s announcement.

 Greek Prime Minister George Papandreou announcing the referendum    AP

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.