Certifying a U.S. Presidential Election: A Constitutional Conflict of Interest

That it should go without saying that a constitution providing a government with its basic framework and procedures should not contain any conflicts of interest makes it all the more astonishing when an actual constitution is found to contain a obvious yet undetected conflict of interest that could be exploited by an institutional or officeholder and yet is easy to obviate, or fix. The implication in such a case is that a society can be too comfortable with institutional conflicts of interest without realizing that if such a conflict is exploitable, it is likely that it eventually will be even if not right away. Because U.S. President Don Trump’s pressure on his vice president, Mike Pence, on January 6, 2021 to refuse to certify the votes of the electors in some of the states did not result in any serious proposals to have another office than the vice presidency preside, a societal tolerance for even known conflicts of interests in general and in a constitution more particularly can be inferred. I submit that such a tacit willingness to continue with the status quo can eventually put even a republic itself at risk.

Speaking on January 6, 2024, U.S. Vice President Kamala Harris referred to her constitutional duty of presiding in a joint-session of Congress tasked with certifying the election that she had lost as something she took very seriously. The American people should not have to worry about whether a vice president might exploit the presiding role by resisting or thwarting a peaceful transfer of power. “Today was obviously a very important day,” she said, “and it was about what should be the norm and what the American people should be able to take for granted, which is that one of the most important pillars of our democracy is that there will be a peaceful transfer of power.”[1] Such a transfer lies at the core of representative democracy, so it is important that any risk of any impediment, whether an opportunistic person outside of a constitution or something lying in a constitution itself, be minimized. It is not, in other words, a minor matter.

Simply tasking the loser of an election with presiding over the counting of votes and the announcement of the winner should give anyone pause. At the very least, no one should be duty-bound to perform such a function—which can be thought of as “rubbing one’s face” in the affair, which can feel humiliating to the person.

Furthermore, politically, whether a vice president is a candidate for president as Harris was or is pressured to do the partisan or personal bidding of a president as Pence had been, having a partisan office preside is itself problematic not only for the presidency itself in terms sheer credibility, but also for a vice president in terms of the election process itself. Simply put, the vice president who is running for president or for another term as vice president is an active player in the contest and thus should not preside over the tabulation and certification of the results. As simple as this is to grasp, it must be difficult for enough Americans that the problem has been allowed to persist.

This is especially damning because the conflict of interest is easy to remove. The chief justice, or any justice, of the U.S. Supreme Court would be a natural fit for the presiding role as the judiciary is not (supposed to be) partisan. Put another way, a sitting president pressuring the vice president to declare some state slates of electors invalid is more likely than pressuring the chief justice to do that same. Institutionally, given the separation of powers in the U.S. Government, reaching out to the chief justice would be much more difficult than trying to pressure a vice president of one’s own administration. Having the chief justice, who swears in presidents, preside over the Congressional counting of the Electoral College votes for president as both the sitting vice president and Speaker of the House look on makes so much sense that it is sad state of affairs when the status quo is almost mindlessly retained even four years after the conflict of interest could have been exploited, with a riotous mob of partisans literally breaching the Capitol to convey additional pressure.

Putting the loser of an election in the position of having to publicly announce the victor is the smoke that points to an underlying constitutional conflict of interest; a mob pressuring a loser on a presidential ticket to abuse the presiding role of the vice president is more like fire than smoke. That the ensuing public discourse did not contain a proposal of a constitutional amendment assigning the task to the chief justice of the U.S. Supreme Court reflects very badly not only on the elected office-holders (and the media), but also on the American people, as it is government ultimately by the people. Perhaps a people gets the government, and constitution, that they deserve, for institutional conflicts of interest should be obviated whether in government, business, or in non-profit institutions.

Neither institutional relations nor processes should contain conflicts of interest that can be exploited because human nature is itself rather inclined to exploit them because of the instinctual urges that manifest as self-, office-, and institutional-interest even at the expense of the interest of the whole. Even though governments and economic systems tend to be based on such interests, the latter don’t have to be encouraged by the ongoing existence of institutional conflicts of interest. Continuing with the status quo can itself be thought of as a choice—one that reflects a certain underlying set of beliefs and assumptions that are valued, and even the extent of basic awareness.  Having seen not only smoke, but even fire, a people can indeed be faulted for having insufficient awareness, and this verdict is perhaps even more damning than that which concerns the naivete concerning human nature being able to withstand conflicts of interest without exploiting them in the long run. The sting of these verdicts hurts all the more when an institutional conflict of interest can be obviated relatively easily with a solution that is, or should be, obvious. Because power is that which is channeled in a political constitution, risking the exploitation of a conflict of interest that is in a constitution is not a smart choice if a viable, ongoing republic is desired.

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1. Aditi Sangal, “Congress Certifies Trump’s 2024 Election Win,” CNN.com, January 6, 2025.

The Israeli Supreme Court’s Conflict of Interest as Unreasonable

Ironically, in making the ruling on New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the country’s basic law that would have removed the judiciary’s authority of judicial review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably exploited a conflict of interest. Basic Law, which is essentially constitutional law, includes the basic architecture of a government, such as how the executive, legislative, and judicial functions are related. Self-interest being a salient feature of human nature, we can assume that the governmental functionaries in each of those functions naturally seek to expand their respective jurisdictions relative to those of the other two. I contend that to give one or two of those areas the last word in altering the division of authority involves a conflict of interest. This applies to a constitutional court. Therefore, even though democracy is served by a judicial decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with entanglements. 

By eight to seven justices, the court ruled “that a government amendment to the so-called reasonableness law should not stand. The bill had stripped the Supreme Court of the power to declare government decisions unreasonable.”[1] That very officials who make government decisions in the Knesset passed the basic law can be seen as problematic. It was essentially a power-grab by the executive/legislative domains at the expense of the judiciary. Although the court “rejected the amendment because it would deal a ‘severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state,’”[2] the naked power-grab could itself be viewed as unreasonable, even taking for granted the element of power-aggrandizing in governing. The court could also have ruled on the basis of there being an institutional and personal conflict of interest, but the court itself could be charged with the same offense in deciding the matter. It is just this conflict of interest that flew below the media’s radar (and got me to writing).

Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible. 

The inherency is explained by just how inherent the self-interest to exploit a conflict of interest, whether personal or institutional, is in human nature.[3] Without doubt a conflict of interest that actually has been exploited is unethical because a private or relatively narrow benefit is put before a public or relatively broad benefit or duty.  

In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.

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1. Rob Picheta, Amir Tal, and Lauren Izso, “Israel’s Top Court Strikes Down Key Part of Judicial Overhaul, Reigniting Divisions as War Rages,” CNN.com, January 2, 2024.
2.  Ibid.

3. Skip Worden, Institutional Conflicts of Interest, available on Amazon.

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

The Right of Political Protest in the U.S.: Nullified in the Outback by Intimidation

The First Amendment of the U.S. Constitution states in part, “Congress shall make no law respecting . . . the right of the people peaceably to assemble, and to petition the Government for a redress of Grievances.” Peaceable protest, even to protest a government or an official thereof, has come to be regarded as a staple of American democracy. In practice, however, the right can be eviscerated such that peaceful protesting is simply not worth the trouble. Such trouble can be orchestrated by a police force or even a government within the United States.
Implicit in the right to protest is the value put on tolerating the expression of contrary opinions. Conservative and progressive views, even those of racists and anarchists, respectively, are generally accorded the right to peaceably protest in a public way. If a State is sufficiently one-sided, however, public officials, including governors, majors, and police chiefs, can reflect the dominant attitude of residents that protests on behalf certain political, economic, or social ideologies should not be allowed. If they must be allowed, then massive shows of police force can—it is assumed--legitimately be used to intimidate the protesters.

The placement of the three posters illustrates pictorially that business and authoritarian political interests can co-exist comfortably in a broader political coalition. In Nazi Germany, for instance, the industrialists were part of Hitler's authoritarian political coalition. Besides receiving purchase orders from a state that is able to resist popular calls for government spending, business likes the political stability that a "law and order" police-state can provide. 

In Arizona, for example, prior to the 2020 election, a conservative candidate for sheriff of Maricopa County, which includes the Phoenix metropolitan area, displayed signs containing the imperative, “Stand Up to the Mobs!” Just above that line was another imperative—that the laws be enforced. Presumably the unenforced laws on car-emission limits and mask requirements on public transportation were not on the candidate’s mind. Presumably he was not planning on holding the transit authority accountable for allowing passengers without masks to ride the buses and light rail. A supervisor at Metro Valley told me by phone at the time that the county law (and ordinances of the cities) that face masks must be worn on public transportation does not have “legal force” because it is just a requirement. Stunned, I did not point out that her company was in violation of the requirement because even bus drivers did not have to wear masks; I had already investigated the strange messages coming out of that company, such as, “Masks are required and we will allow passengers to board without wearing them.”
The candidate for sheriff was likely referring back to the protests against police brutality (otherwise known as abuses of power). That he did not use the word, “Rioters,” instead of “Mobs” implies that he was including peaceable protests too. Given the bad connotation of the word, “Mobs,” as “a large and disorderly crowd of people” according to the Merriam-Webster dictionary, a negative attitude toward at least certain peaceful protests can be inferred. I had heard enough Arizona residents conflate “liberal” peaceful protests with riots to know what the candidate meant by mobs. “They are all violent,” one conservative resident insisted to me as I thought of the state’s pre-college education rating of 49^th out of the 50 States.
A few years after the 2016 presidential election, some students of Arizona State University told me that protests against Donald Trump had not really been allowed on campus. One student even observed that Arizona does not tolerate “liberal” protests. Besides the errant assumption that any mob of people is bound to become violent (which in turn rests on an extremely negative view of human nature rivaling that of John Calvin), anger against “liberals,” which was clearly evident locally, was likely behind the excessive police force designed to intimidate even peaceful protests.
With ASU police regularly staked out in jeeps parked on sidewalks and even academic courtyards, an excessive show of force has been the authoritarians’ tactic of choice to intimidate protesters even if they happened to be 20 students in the Global Politics of Human Rights class whose final project was a class protest on campus on April 13, 2017. The students protested against Trump’s policies on immigration, LGBT rights, women’s rights, Black Lives Matter, and even the prison system. 

The class was fluid in its movements, rather than being intent on blocking a sidewalk. (Source: Connor Bolget of The Republic)

As vaguely reported by a local newspaper, “At one point, Arizona State University personnel asked the group to relocate in order to stop blocking the sidewalk. Protesters then stood in a staggered line, with about a foot between each person, instead of standing shoulder to shoulder. Campus police then were called to the scene, as the protesters changed from holding signs to linking arms, walking back and fourth [sic] in front of the grassy area of Hayden Lawn.”[1] The word lawn is important, as the area is a large square of grass with sidewalks on the periphery.
Who were the opaquely labeled university personnel? In addition to the routine police presence on the campus, students working essentially as police aides typically have the campus covered (even sidewalk intersection to intersection). I have seen those security students keeping a particular eye on outdoor “political” tables near the student union building. It is possible that those student-security personnel notified the campus police of the class’s final project as a protest, which the police would have understood as such rather than as an academic project.

The walkie-talkie-clad "eyes and ears" for the campus police are ubiquitous on the main ASU campus--sometimes at every sidewalk-intersection even as observant police jeeps are stationed during the day on sidewalks and even academic courtyards. 

Did the university personnel and police over-react? The local newspaper reported, “Passers-by had some difficulties finding their way around the linked demonstrators, so ASU’s campus police stepped in to give a second warning, this time directly” to the professor.”[2]  That the protesters were few (20 with some add-ons) and were generally fluid (i.e., mobile) suggests that both the university personnel and the caller over-reacted. It would not be a crisis for by-passers (especially students) to walk on the grass, especially at that square. The police stepped in to give a second warning, so who gave the first? The student security workers? Given that students ordinarily walked on the grass and the small group was mobile, were two warnings really necessary? Should a university police force be able to interfere with a class project without permission from an upper-level academic administer? I suspect that the police took it upon themselves to threaten the professor as if she deserved to be arrested because students had to make a slight detour on grassy square. I also suspect that the police viewed the event as a political protest rather than as an academic project. That it was the latter means that the police should not have intervened without the permission of an academic administrator. Instead, the incident reflected the local culture wherein mobs protest and protests can be expected to turn violent. With such a negative view of protests even as a class project, it is easy to understand why threats and intimidation would be used with impunity.
Hence even the people in the peaceful protests against abuse-of-power by the police in Phoenix during the summer of 2020 (as distinct from the riots, which rightly have no constitutional protections) had to contend with massive police shows of force. Even a small protest on behalf of Ryan Whitaker had to put up with a police helicopter circling overhead as if twenty people might suddenly lose control of themselves and go on a rampage. A resident who lived near a park where protests against police violence took place told me that even peaceful protests walking to the park had to contend with an overwhelming police presence. I was talking to the other Midwesterner after a police car hit a parking lot curb as the police employee quickly swerved closely by me as I was walking from the main library, which was closed. No one was in the nearby park or even in the library’s parking lot that early afternoon during a weekday. Even though protests were taking place nightly, I contend that the police were over-reacting to one person walking through the parking lot. The aggressive driving was totally uncalled for, and yet the police employee likely, given the culture there, regarded it as measured rather than hyperactive. The underlying assumption, which I had heard from both local police and residents, is that any grouping of citizens in public is likely to turn violent without intimidation from an exaggerated show of force. That very assumption is what puts Arizona at odds with the First Amendment of the U.S. Constitution.
During that summer, the city’s mayor was bragging about how minimal the protests were there compared with those in other big cities in other States. If that differential was the result of intimidating peaceful protesters under the subterfuge that they would inevitably become violent because mobs are unruly, then the “success” came by trampling on the right of the people to assemble peaceably, which means without feeling intimidated. I would not call that success.

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1. Conner Borgelt, “ASU Class Holds Protest as Part of Its Final Assignment,” The Republic (azcentral.com), April 14, 2017.
2. Ibid.

American Federalism: Christianity as the Official Religion in North Carolina

“Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof.” Congress. The writers of the First Amendment of the U.S. federal Constitution were obviously excluding the state governments. Even so, the U.S. Supreme Court has established that the amendment applies to the states as well as Congress. From Lemon v. Kurtzman (1971), the Court gave us what is known as the Lemon test. State funding for parochial schools (e.g., Catholic schools) must have a secular legislative purpose (e.g., education), neither advance nor inhibit religion in its consequences, and not foster “an excessive government entanglement with religion.” Yet the leap in claiming that the amendment bears on the states must deal with the explicit language that “Congress shall make no law.” Even so, it did not seem constitutional to many people in 1913 when the North Carolina legislature tried to make Christianity the republic's official religion. Even so, because the United States is essentially a federal empire of fifty republics, care ought to be taken when applying a one-size-fits-all approach as it does not take into account interstate political, religious, and cultural differences. Much is made of these in the European Union, but not in the United States.  
When the 13 original American states that formed the United States had been colonies, Calvinism was the “state religion” in all of the New England Confederation, which excluded Rhode Island on account of its freedom of religion. Pennsylvania was known as the Quaker experiment. Maryland was heavily Catholic. Virginia was Anglican. New Jersey split in two for a few decades in the late seventeenth century, with the Calvinists taking East New Jersey and the Quakers taking West New Jersey. Even by the time the U.S. Constitution was being considered, the notion of a state religion in a particular state would have been familiar to most Americans. The U.S. Supreme Court’s precedent seems artificial in comparison.
Even so, the North Carolina General Assembly would have gone too far had it passed the bill in 2013 stating in part that the North Carolina General Assembly “does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions.”[1] The bill also states that the U.S. Constitution does not prohibit states from making laws respecting an establishment of religion. While this assertion is probably correct in theory, the precedent set down by the U.S. Supreme Court makes the prohibition the law of the land. Refusing to recognize the U.S. Supreme Court as bearing on the states harkens back to the Nullification Crisis centered on South Carolina. President Andrew Jackson pointed out in 1831 that the Union would not long last if the states could decide for themselves whether they would be bound by federal law.

Rep. Carl Ford of the NC Assembly. He proposed the bill that would have sidelined the U.S. Supreme Court and paved the way for Christianity as the state's official religion. 

The challenge is to get back to the wording, “Congress shall make no law,” without throwing out the U.S. Supreme Court. Proposing state laws, whether on religion or abortion, that are obviously unconstitutional under the Court’s rulings makes a state body look foolish. Rather than having selective amnesia, state representatives could seek to reverse the Court’s precedent either through the consent power of U.S. senators or by proposing a federal constitutional amendment. The first route may require state governments to have greater sway over the senators. Originally, they were to represent their respective states by representing the governments.
In terms of an official religion at the state level, Utah would obviously be Morman, but not every state has such a concentration of one particular denomination. Nor is religion itself equally strong in every state. Not every state would want to institute an official religion. All of this suggests that the United States would be a richer quilt to the extent that states can differ on religion as a phenomenon and with respect to the particular religions. Put another way, the U.S., being imperial in scale, is innately more diverse than can be seen by the extent of one-size-fits-all Congressional action. Allowing the states to fulfill their particularities more fully would make the U.S. itself a richer tapestry and thus a strong union.
If some of the American republics in the U.S. were to have established state religions, a person in the minority in one of those states might feel more like an outsider in one’s own town. Being a non-Mormon in Utah would be even harder were Mormonism the official state religion.  However, is it not already awkward for atheists in the small towns of several states, such as Alabama and Mississippi? Is there really so much difference between an overwhelmingly Christian population and making Christianity the official state religion? It would not be as though the heretics could legally be burned alive. To counter any unfairness more generally, equal protection under the law and due process could be used in a non-Christian’s defense.  
I would even say that it should not be the case that the typical American feels equally at home in every state, for that would mean that the one-size-fits-all approach of Congress has effectively homogenized an empire that is inherently diverse.[2] In terms of historical political theory, an empire is “different in kind” (i.e., qualitatively) than the kingdom-level on the next scale down. It is not only that an empire is larger than a kingdom (i.e., quantitatively). Whereas a kingdom is only large enough that it may or may not be diverse within, an empire by definition consists of kingdom-level polities and is thus inherently diverse because kingdoms are different. From the beginning, the American colonies/states were mapped on the scale of the then-extant early-modern kingdoms in Europe. The European countries and American republics generally are comparable. France is a bit smaller than Texas, Germany is roughly the size of Montana, Spain matches Arizona and Italy is the size of California. Among the respective smaller states, Malta, Luxemburg, and Cyprus cluster with Rhode Island, Delaware, and New Jersey. Belgium and Maryland are both mid-sized states in their respective unions. To compare the U.S. and France or the E.U. and Texas thus evinces a category mistake. Flawed conclusions should be expected.
The United States altogether thus form an empire, which is composed of kingdom-level polities/cultures/territories.[3] We should not be surprised to find that the culture in Texas differs from that of Massachusetts, for example. One of the benefits of living in the U.S. is that one can live in a republic that fits one’s ideology or lifestyle. For example, a gay person can move to a culture such as Massachusetts or California in which greater acceptance exists. People in the majority cultures in Oklahoma and Arkansas would not have to be pushed into changing their respective cultures into accepting homosexuality, though the marriages made in the other states would have to be recognized due to the full faith and credit clause of the U.S. Constitution.  A fuller happiness for both gays and traditionalists/Biblicalists would result if each can find a fitting environment than would be the case were Congress to pass an empire-wide one-size-fits-all “solution.”  Were it made under one giant compromise, U.S.-wide, it is likely that the result is not a fit for any American. Moreover, to suppose that every state should be virtually the same just because the U.S. is recognized as “a” country ignores the intrinsic diversity that exists within an empire-scale complex-polity. Even the poll finding that roughly a third of Americans want Christianity to be the official religion in their own state cannot be generalized using a broad brush across the United States. I suspect that a much higher percentage of Arkansans than New Yorkers or Californians want Christianity to be their official religion.
In short, the establishment of state religions in some of the states even as strong majorities in other states prefer their respective cultures (and governments) to remain primarily secular would provide a closer fit for not only the people involved, but also the diversity that exists anyway within an empire that is composed of kingdoms and/or republics. To treat an empire as though it were synonymous with one of its republics or kingdoms evinces a category mistake. The benefits of diversity that can be enjoyed within an empire are threatened when Congress makes the mistake by acting like a state legislature. Put another way, the United States would be stronger were the strictures relaxed such that they could more fully manifest their uniqueness. Seeing a strip-mall with a McDonalds restaurant in every town from coast to coast is appreciably more bland. “Sameness” multiplied across a continent is not only tiring; it fails to take advantage of the inherent diversity that springs from distance and more than one government. One need only look at the E.U. states to get a sense of how little distance is necessary for culture to differ. Even though the North Carolina’s General Assembly was pursuing a foolish strategy in proposing a bill that would have the government ignore the U.S. Supreme Court when convenient, the presumed article of separation between church and state at the state level can and should be re-considered.

1. John Celock, “North Carolina House Speaker Kills Bill to Create State Religion,” The Huffington Post, April 4, 2013. See also Emily Swanson, “Christianity As State Religion Supported By One-Third of Americans, Poll Finds,” The Huffington Post, April 6, 2013.
2. Skip Worden, British Colonies Forge an American Empire. Available at Amazon.
3. Ibid.

On the Role of Partisan Political Ideology in the U.S. Supreme Court

Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorialized in 2011 that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”[1] One could just as easily say behave like human beings, for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, especially given human nature that is apt to exploit such leeway. In other words, ideology may be part and parcel of the essential function of a constitutional court, given the nature of juridical interpretation. 
Rather than being a technical application sans discretion of a constitution to a matter of law, constitutional interpretation may be one of many ways of pushing for one’s view of the optimal government and society. Accordingly, the arrangement wherein a constitutional court is the final decider of the constitutionality of law, short of a constitutional amendment, may be criticized because it enables the ideologies of a few unelected jurispruds to rule, in effect, or have the last word.

The editorial in The New York Times displays a tendency to skirt the basis of the problem. For example, the editorial castigates justices who have attended political events in violation of the ethics code that applies to the rest of the federal judiciary. Such conduct compromises the appearance of being impartial and independent. This appearance in turn is based on the presupposition that the judiciary is not a political branch. Justice Ginsburg, for example, makes this assumption explicit in pointing to its tenuousness: “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”[2] 

I contend that not considering the U.S. Supreme Court as involving political ideology is to ignore the space for ideology allowed in constitutional interpretation. No human being is impartial internally concerning matters of government and society. Beyond the reach of ethics codes, the space allowed by interpretation is naturally to be filled not only by “pure reason,” but also by ideology informed by one’s values and beliefs concerning the good society and ideal governance.

In the Court’s 2010-2011 term, for instance, ten of the sixteen 5-4 decisions were split along the familiar ideological grounds. The conservative majority showed “contempt for laws that provide some balance to the unlimited amounts of money flooding the political system,” “made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating,” made it more difficult for citizens to hold prosecutors accountable, and struck at consumer (ATT) and labor (Wal-Mart) rights.[3] The similarity between this judicial conservative majority and the political right makes these rulings particularly suspect. Were the Court’s “conservative” majority conservative in a distinctly judicial sense distinct from the planks of political conservatives, the role of the judicial ideology would not be as harmful or baleful to the republic. The fear, in other words, is that politically partisan agendas operate through judicial decisions of the Court via the discretion involved in judicial interpretation. Conservatives had a sense of this from the Warren Court just as liberals suspect the influence of politically conservative ideology in the Rehnquist and Roberts Courts. Neither conservatives nor liberals go far enough, however, in recognizing that constitutional interpretation itself allows for ideology.

The Times points to the superficial distinction that informs the design of the U.S. Supreme Court. “The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support.”[4] However, the source of the political ideology is less due to political support and more a function of a justice’s own ideology. This is why an ethics code ought not be relied upon to eviscerate the interlarding of partisan politics in the Court. The justices are human, all too human, just like the rest of us. Perhaps we ought not assume otherwise.

The editorial touches on the inevitability of partisan ideology in the Court in the following passage: “Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.”[5] Being “dismissed” as partisan might be too loose; the decisions cannot but contain a partisan element, given human nature and the space in interpretation.

Rather than expecting the justices not to be human or assuming that an ethics code would do the trick, we could admit to the inevitability of political ideology in judicial interpretation. If the ideologies of five to nine citizens who serve on the U.S. Supreme Court ought not be definitive, judicial review ought not be the final decider short of constitutional amendment. A supermajority in the U.S. House and U.S. Senate, or a supermajority of the state legislatures, could be given the authority to overturn a decision of the U.S. Supreme Court. I would suggest that both Congress and the state governments could act thus to have the final say short of undergoing the constitutional amendment process. All branches of all governments in the United States are duty-bound, after all, to consider the constitutionality of their respective laws. Constitutional interpretation is an exercise not devoid of political ideology, as one’s values and beliefs cannot but come into play.

1. The New York Times, “Ethics, Politics and the Law,” Editorial, July 1, 2011, p. A22.

2. Joan Biskupic, “Justice Ginsburg Wields Greater Sway on High Court,” USA Today, July 1-4, 2011, p. A1.
3. The New York Times, “Ethics, Politics and the Law,”
4. Ibid.
5. Ibid.

Disenfranchising an Electorate: Using Legal Language on Referendums

Popular sovereignty, the ultimate sovereignty of a people as a whole, is typically exercised by an electorate at the ballot box. Such sovereignty is above that of governments (i.e., governmental sovereignty), which might come as a surprise given how little voters actually decide. Typically, the will of the people is limited to filling public offices by selecting among candidates or write-ins. In the last few decades of the twentieth century, California effectively expanded the power of popular sovereignty by adding a number of referendum questions to the ballots, but even those questions have not come close to covering the full spectrum of major policy issues, which are typically left to the office-holders: the agents of the People. Even though the popular sovereign (i.e., the direct will of the people) can make mistakes—such as requiring a 2/3 legislative majority to pass a tax increase in California—the expansion from merely filling public offices to actually making basic public policy decisions is from a democratic perspective a good thing. The key is to go broad enough that judgement rather than technical expertise or specialized knowledge is used. This effectively franchises at least the vast majority of an electorate as nearly everyone is capable of making a judgement among competing values, whereas a small percentage of people are highly educated in any given society—even in advanced industrial states. 

The problem, it seems to me, lies in how the policy questions on a ballot are written. In particular, they must be written in such a way that they are understandable to the typical voter. Writing a question, whether on policy, law, or a constitutional amendment, in legalize circumvents the expansion in popular sovereignty. Such an approach defies common sense itself, and yet it the Florida legislature did just that in 2012, placing the Florida electorate in a nearly-impossible position as the popular sovereign. Perhaps the legislators knew that the incomprehensible legalize would effectively safeguard their existing power.

Concerning the 2012 election in Florida, The Florida Times-Union in Jacksonville wrote, much “of what’s on the ballot is legalese and difficult-to-understand wording associated with the amendments.” The newspaper advises Florida’s citizens, “To save time, it will help to know what each amendment does, how you want to vote, and if a “Yes” or “No” achieves that desired vote. In short, be prepared.” Much too much is assumed in this advice concerning the wherewithal of the typical citizen to make sense of the technical legal words, and even to research each question before voting in order to understand what the  technical language means (assuming that the typical voter is going to wade through even the newspaper’s own deciphering).  In general, assuming too much of an electorate reflects negatively not on the electorate, but, rather, on the legislators who crafted and approved the ballot’s language.

For example, the matter of the third proposed amendment on the Florida ballot was put to the voter in the following words (from the ballot): “This proposed amendment to the State Constitution replaces the existing state revenue limitation based on Florida personal income growth with a new state revenue limitation based on inflation and population changes. Under the amendment, state revenues, as defined in the amendment, must be deposited into the budget stabilization fund until the fund reaches its maximum balance, and thereafter shall be used for the support and maintenance of public schools by reducing the minimum financial effort required from school districts for participation in a state-funded education finance program, or, if the minimum financial effort is no longer required, returned to the taxpayers.” Besides the basic, rather obvious point that the typical voter could not possibly be expected to understand this language (and yet someone approved it nevertheless!), the language assumes that the voter knows what goes into the existing revenue limitation (and can thus compare it with basing a limitation on inflation and population changes). Furthermore, the voter is assumed to be familiar with what a budget stabilization fund is, and able to assess its dynamic (e.g., maximum balance, etc.). The proposal is so specific, moreover, it may be misplaced as basic or constitutional law rather than as a mere statute. Indeed, the decision on the question is more along the lines of governmental than popular sovereignty (i.e., the elected representatives, who write laws and thus either understand the legalese or have a staff that does).

Supposing perhaps that the typical voter has a real estate brokerage license, the fourth proposed amendment on the ballot states in part: “In certain circumstances, the law requires the assessed value of homestead and specified nonhomestead property to increase when the just value of the property decreases. Therefore, this amendment provides that the Legislature may, by general law, provide that the assessment of homestead and specified nonhomestead property may not increase if the just value of that property is less than the just value of the property on the preceding January 1, subject to any adjustment in the assessed value due to changes, additions, reductions, or improvements to such property which are assessed as provided for by general law.” The legislators erred, in my view, in projecting their own language onto the general public, and, moreover, in conflating what is actually a statute with constitutional language, which is (or at least should be) much broader.

Another proposed “amendment” was for “an exemption from ad valorem taxes levied by counties, municipalities, school districts, and other local governments on tangible personal property if the assessed value of an owner’s tangible personal property is greater than $25,000 but less than $50,000.” Besides the Latin term and the legal jargon, the specification of the dollar figures is clearly statute-level rather than constitution. Furthermore, how many Floridians knew what “ad valorem taxes” are?

To be sure, some items of detail should be decided by the People’s agents because broad judgment is not required. For example, could not the legislators have been entrusted with making the decision on whether to “replace the president of the Florida Student Association with the chair of the council of state university student body presidents as the student member of the Board of Governors of the State University System.” Is this even constitutional language? The typical voter might legitimately have wondered, what is the council of state university student body presidents, and is it really much different than the Florida Student Association? Moreover, why am I being asked to decide this? Because popular sovereignty is superior to governmental sovereignty, that which a legislature puts to the electorate to decide must reach a certain threshold of importance. Deciding on contending student representatives so obviously does not meet this test that one might wonder whether the Florida legislature was fit even to legislate, much less address matters to the agents’ principal—the voters as a group.

The truly unfortunate thing about Florida’s bastardization of popular sovereignty is that sensible proposals to expand popular sovereignty could face unnecessary hurdles based on botched attempts to have an electorate decide on proposed constitutional amendments. In other words, by using legalize, the Florida legislators set the electorate up to fail. Going back to limiting popular sovereignty to the selection of candidates would suffer from the fact that so many reasons go into why voters elect a person to an office that it is impossible to say that the majority of the voters have expressed a general will on a given policy by electing a particular candidate.

Here’s what the Florida legislature missed: Whereas the typical voter does not have a basis in real-estate, accounting and law, he or she could be expected to reflect on and give an answer to questions such as: should abortion be illegal, should the U.S. give aid to Israel, should military spending be cut, should Florida provide subsidized health insurance to residents unable to afford it, and should property taxes be cut to reduce the deficit or raised to add funding to roads and education? A legislature could even add some non-legal terms to such questions to clarify them without losing the typical voter, and testing such questions by using focus groups could add confidence that the legislators have not unintentionally projected too much of their own world into the wording. Additional specificity could be handled by the agents (i.e., the legislators), as per the nature of principal-agent relationships.

In short, expecting too much from the electorate is not only utterly unfair to the voters, it also risks undercutting real progress on popular sovereignty, an electorate being fully capable of deciding general policy and even law, with the legislative agents then being tasked with writing the expressed general will into legal language. Yet legislators have so much power in deciding major policy that being mere implementers would surely be a let-down. Hence they would resist efforts to enhance the People’s exercise of popular sovereignty.

Sources:

Sample Florida Ballot 2012

Matt Dixon, “Florida Constitutional Amendments: Voter’s Guide,” The Florida Times-Union, October 13, 2012.

The ECB as the E.U.'s Bank Supervisor: States in the Driver's Seat

Although the establishment of a federal regulator of major banks in the E.U. was as yet not approved by the European Parliament or ratified by the governments of states using the euro as well as any other states opting in, the European Council of Ministers signed off in December 2012 on an amendment that would give the European Central Bank authority over banks that have at least €30 billion in assets, make up more than 20% of their state’s economic output, or operate in at least two states (i.e., interstate banking). At the very least, three banks per state would come under the central bank’s oversight. Other banks would remain the responsibility of state regulators. This is an interesting “working out” of federalism, distinctively European-style.

For one thing, that the Council of state finance ministers—representing their respective governments—formulated the proposal while the representatives of E.U. citizens would then presumably have only an “up or down” say on the matter reflects the salience of the state governments at the E.U. level relative to the elected representatives of the people. That is, appointees of elected representatives at the state level have more power at the federal level than do the federal legislators who directly represent the people (i.e., without respect to state).

German Finance Minister Wolfgang Schäuble at the E.U. Council of Ministers discussing the bank supervisor amendment.   WSJ

One implication of the imbalance of the “confederal” chamber based on international principles over the federal chamber based on national principles (i.e., representing citizens rather than states) is that the interests of the whole can be held up by the vested interests of a particular state government (e.g., Germany).

Another implication is that of a democracy deficit because the directly elected federal legislators are essentially in the back seat. To be sure, the state leaders who are driving the union are elected too, but to state office. Put another way, the legislators elected specifically to the E.U. level are playing second fiddle to officials elected to act in the interest of their particular state. This mismatch is a deficit in democratic terms.

Therefore, rather than focusing only on the substantive powers proposed for the ECB, attention might be given to the process by which the amendment to the E.U.’s basic law (i.e., constitutional) was formulated and sent through to be officially proposed and ratified. At a fundamental level, the states both designed and would ratify the proposal—a conflict of interest due to the relative subordination of the E.U. Commission and Parliament. It is as if the state legislatures would sit in judgment of what they themselves designed, effectively patting themselves on the back while the people’s federal representatives merely nod as though a footnote.

Source:

Gabriele Steinhauser and Laurence Norman, “EU Reaches Deal on Bank Supervisor,” The Wall Street Journal, December 13, 2012.

The U.S. Supreme Court: Too Much Ideology in Jurisprudence?

Should the electorate in a republic be able to remove Supreme Court justices due to their past decisions on particular cases? Can this basis be distinguished from removing a justice for judicial incompetence? One thing is clear: the general public does not have the technical expertise to perform a “supervisor’s evaluation” on a judge. Obviously, anyone can see that someone who skips work on a regular basis is not fit for the job, but this is different than evaluating a job by the technical criteria of the profession. Distinguishing between a particular decision and general judicial approach, for example, is more difficult. Moreover, it can be difficult to balance the rights of popular sovereignty (i.e., rule by the people) against the rule of law without respect to majority opinion.

The justices of the U.S. Supreme Court in 2012.

To the extent that a justice’s interpretation of the law involves his or her political ideology given the discretion or latitude involved in jurisprudence, the electorate in a republic has a claim on who should serve as a justice. To be sure, constitutional amendment is another means by which the people can overcome a supreme court, though this route is cumbersome and limited to a particular case or area of law. The element of political ideology in a constitutional-law decision means that a clear line of separation does not exist between politics and constitutional jurisprudence. Accordingly, the following view can be criticized.

“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.” It is also very dangerous to have a very few number of unelected citizens serving as justices making de facto final decisions involving political ideology. Moreover, the ideological differences frequently present on a bench means that partisanship is already present, even if it is subtly filtered through the prism of jurisprudence.

In the case of southeastern Florida, the institution of justice itself can be subject to severe repute—that is, whether it exists at all. Once when visiting Miami, I tried to enter a local bus at the bus-transfer-station at a regional train station. I say tried because just as I was stepping into the bus, a large black man of about 25 years old who was standing to the side just outside the bus body-slammed me against the opened bus-door to force me out of the doorway. Not all the black people had entered, and the man presumed the right to force me out with a slam. The bus driver saw the violence, and yet refused my request that he contact his company and the police. “That’s just the way it is here,” the black driver told me. "You should not have gotten on then." The sheer blatant nature of the violence and the driver’s reaction gave me the impression that anti-white racism is systemic in Miami and that the system of justice there is at best partial, or prejudiced. Days later, I mentioned the incident to a Miami Beach policeman. “We have cameras on every bus; it didn’t happen.” His attitude being obviously corrupted, I thanked him for his time and walked away. The decadence or corruption of a society is systemic in nature; it is best, therefore, simply to avoid such places even for a brief stay.

Given the corruption and anti-white racism in Miami, a political party may have good reason to target three justices sitting on Florida’s Supreme Court for presuming that the criminal justice system can afford to be sacrificed to legal technicalities. That the three justices had “judged” legal technicalities as sufficient to free a man who had tied up and lit someone on fire suggests that the plight of the justices can be tied indirectly (as enablers) to the systemic injustice in Miami-Dade. That is, Floridians looking unfavorably at the decadence in Miami "culture" may judge Florida’s justice system to be inadequate and thus in need of justices who view it as such. It can even be said that removing the justices was a duty of Floridians who oppose outright aggression in public and enabling by county employees.

The notion that political ideology, including whether the system of justice is sufficient for there to be the rule of law in a society, is somehow absent in a constitutional court’s decisions is perhaps one of the most invisible or unknown naiveties in modern Western civics. One does not have to go back to Gore v. Bush (2000) to detect the presence of an ideological agenda in constitutional court decisions. The Citizens United (2010) case, for example, also decided by the U.S. Supreme Court, involves the ideological view that money is speech and corporations are legal persons and thus having the right of free speech. These positions are not founded in jurisprudence, but rather in ideology concerning wealth and power.

Typically, a justice seeks to portray his or her ideological positions through the lenses of his method of interpreting the constitution, as if such a device rendered the moral values as judicial interpretation. For example, Justice Scalia calls his method “originalist,” “original intent,” or “textualist,” meaning that he applies the words in the Constitution as they were understood by the people who wrote, proposed, and ratified them. It so happens that this method is consistent, at least to Scalia, with his social conservatism. Capital punishment was allowed in 1787, so that practice could not have been viewed, at least by the majority of the conventions’ delegates, as cruel and unusual punishment.

The sheer ease with which Scalia claims he can make decisions on cases in which conservative social ideology is salient suggests that something more is going on than constitutional interpretation. Speaking at the American Enterprise Institute in 2012, for instance, he said, “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” At the very least, Scalia’s own statement does not privilege judicial interpretation; rather, he describes the possible cases in terms of social issues rather than constitutional doctrines. Put another way, if the cases involving such issues are so easy, then they could (and should) be put to the electorate as referendums. Scalia belies his own (and his colleagues’) relatively unique claim to technical expertise, and thus winds up making my point for me—more is going on in U.S. Supreme Court decisions than simply applying methods of constitutional interpretation to legal doctrines and the facts of particular cases. That “something more” can be excised and assigned to legislatures or the people.

As still another example, the U.S. Supreme Court once again weighted in on affirmative action in October 2012. The Wall Street Journal reported that the "80 minutes of intense argument revealed deep fissures among justices' views on the pursuit of diversity in higher education." The fissures just happen to go along with how liberal or conservative the justices were on social issues. In my view, whether the state governments have a compelling interest in diversity in higher education is not a judicial matter because diversity itself is an ideological value. Elected representatives, or the electorate itself, could decide the matter with more legitimacy than in relying on Justice Kennedy's view on affirmative action.

It is not impossible that a constitutional court itself could put to the electorate questions oriented to the ideological element. This would enable justices to concentrate instead on technical judicial matters, which constitute the “turf” on which the juridical expertise is based. In other words, in not being so greedy or “over-reaching,” the justices and the court itself would have more legitimacy. To those who say that putting a referendum to the people, say on whether capital punishment is cruel and unusual punishment, would introduce politics into the decision, I submit that politics are inherent in the decisions already, given the element of political or social ideology. In short, a direct relationship is possible between a supreme court and the people, bypassing the other branches of government. Just as the U.S. Government can bypass the state governments to have direct effect on the people, the U.S. Supreme Court could talk directly with the people via adding questions to the ballot. Alternatively, a court could direct the chief executive or legislature to decide or put to the people questions concerning ideology that bears on a decision. Not being elected, justices do not have legitimacy in determining such questions. Scalia’s statement reads like one that one might hear in a barber shop (or so I would imagine).

In Iowa after its Supreme Court’s decision on gay marriage, the republic’s electorate voted to remove three of the justices who had joined in the majority opinion. In effect, the majority of those citizens who voted were saying that the decision was not just one of judicial interpretation. To be sure, the court’s decision included the juridical matters of constitutional rights irrespective of majority rule, and constitutional method or interpretation more generally.  Nevertheless, the ideological question of whether marriage as an institution should be extended to couples of the same sex was also in the mix. Separating two elements in one decision and weighing the qualitatively different (though not disparate) strands is very difficult, to say the least.

A conflict of interest exists in majority rule weighing its own right against the rights of individuals or a minority faction, but it is also problematic to rely on nine unelected people to decide a society’s meaning of marriage unless there is also constitutional language on language itself (rather than more general clauses that might pertain). Interpretation without the ideological element presupposes more direct constitutional language than “due process” or “equal protection.” Accordingly, the court and the people, as well as their elected representatives, all have a role in what is regarded as “legal opinions” in constitutional law.

Sources:

Lizette Alvarez, “G.O.P. Aims to Remake Florida Supreme Court,” The New York Times, October 3, 2012. 

Mark Sherman, “Antonin Scalia: Death Penalty, Abortion, ‘Homosexual Sodomy’ Are Easy Cases,” The Huffington Post, October 5, 2012.

Jesse Braven, "Justices Clash on Affirmative Action," The Wall Street Journal, October 10, 2012.