According
to Protagoras (490-430 BCE), “Man is the measure of all things.”
Protagoras was a Greek and, according to Plato, a professional
sophist. In view of his history, he qualifies as a dead white
European male. Thus we reject everything he says. While that's not
my automatic response, in this instance I accept the rejection of
this particular declaration of the primacy of Man for several
reasons. The most obvious is religious, but I won't get into that at
this time. Rather I shall begin with Teddy Roosevelt.
It
was the late President who said, in a State of the Union address,i
“No man is above the law ... ”ii
And that is the way our country is supposed to operate. Although
crime exists and there are many who place themselves above the law,
there are many who, less schooled in avoidance of the system and less
able to afford sophisticated legal protection, come before what we
term “the bar of justice.”
That's
the way we work. According to the Constitution, Congress makes the
laws and the courts decide on their just enforcement. In between is
the executive power which provides the tools for the overall system,
and it includes the mechanisms for bringing suspected violators to
justice. But the bottom line is that the courts decide what the law
is and what the law means. The courts (not Man) are the measure of
all things. We know that is true because the Supreme Court has told
us that it is.iii
Sometimes
it is difficultiv
to see the justice in a court decision. In one case,v
for example, the Supreme Court decided that it was in violation of
interstate commerce laws for a farmer to grow wheat for his family's
use if that exceeded what the government permitted. The Justices,
however, decided that the part for his own consumption was illegal
and the decision of the Secretary of Agriculture to fine him was
proper and in keeping with the Constitution.
Sometimes
the Court sees “rights” in the Constitution that are not obvious
to those like me who are uninitiated.vi
Many designate it as “judicial activism.” That's a nice way of
saying that it's politics for Justices. So it's important to be sure
the right ones are on the bench – a high priority for every
President.
Perhaps
the courts shouldn't insert themselves in such matters. Perhaps they
should. But one could surely argue that the court shouldn't “see”
rights simply because they think they ought to be there. One might
fear that such a procedure contradicts the idea of the rule of law.
He might be concerned that however right a new “right” might be,
it has been established wrongly. Perhaps this supports Protagoras's
view: In this instance, Man (or Womanvii)
is the measure of all things. One of the more important
issues each time there is a presidential election is the knowledge
that the President (with the approval of the Senate) will choose
candidates for open Supreme Court positions. Since the law is
whatever the Justices say it is, choosing one with a particular
political philosophy is an important means of making law conform to
your own agenda. So an unelected Justice gets a lifetime appointment
as a potential creator of rights. The original authors of the
Constitution required ratification of their document. They needed to
have their ideas approved. Supreme Court Justices do not.viii
But
that's enough quibbling. Back to the issue.
Okay.
Griswold v. Connecticut taught us all some important lessons.ix
Privacy. Behind closed doors. Consenting adults. Keeping the
government from intruding on our private beliefs and practices makes
sense. You don't have to be a libertarian to want to keep public
officials from deciding issues that you view as matters of morality.
That, however, is coming to pass.x
More and more there is intrusion by the courts on matters of privacy
and belief. The issues are no longer privacy and closed doors, or
consent, or even adults. The key word is “rights.” The courts
have discovered constitutional rights where they may not be apparent
to most of us.
The
Colorado Division of Civil Rights,xi
a civil rights court, has decided that it is discrimination to
require that a transgender student – born a boy but identifying as
a girlxii
– be denied use of the girl's bathroom. The use of the teachers'
rest room or that of the nurse was deemed to be discriminatory. Fear
was expressed that the child would be stigmatized. The consent of
the other children in the bathroom was not the issue. Their privacy
was not the determining factor even in a public bathroom.
What
are the rights of the other children (and their parents) who are
embarrassed by the presence in the bathroom of one they considers of
the opposite sex? Suppose one of those children has been subject to
sexual abuse and is traumatized by the presence of what she considers
a member (sic) of the opposite. And what if parents simply don't
want their children exposed (literally, figuratively, or both) to the anatomy of the opposite sex?xiii
Does
the ruling apply only to children or also to adults of what some
might consider the opposite sex? If only children with “gender
dysphoria” are involved, what is the upper limit of age? Do older
individuals who identify with the opposite sex have any rights.
Should those who object to the ruling or are not covered by it be
permittedxiv
to use an alternative bathroom?
This
is not the only case of its type but it is the first to specify that
the rights of the transgender student trump the rights and beliefs of
others. Various courts have affirmed the idea of equal rights for
homosexuals, while the New Mexico Supreme Court has ruled that a
photographic studio has no right to refuse the business of a same sex
couple that wants their ceremony photographed. The personal and
religious beliefs of the photographers are secondary issues. As the
New York Times put it, “One
of the justices, Richard C. Bosson, wrote: 'At its heart, this case
teaches that at some point in our lives, all of us must compromise,
if only a little, to accommodate the contrasting values of others.'”
The
issue is not any particular moral opinion. And the issue is not
minority versus majority rights. The issue is whether the state has
the right to impose its own morality on the rest of us.
Notwithstanding “compromise … to
accommodate the contrasting values of others,” however, at
some point civil “rights” become “wrongs,” and the weight of
judicial authority doesn't automatically mean that some rights can be
sacrificed because of the current social milieu. It's a complicated
balancing act in which the rights of the victims must be considered
too. But it may be difficult to decide who is the victim. Too often
there are instances in which the deciders of the law decide that
President Roosevelt (Theodore) was wrong and their social agendas are
(above) the law, and are guaranteed by the Constitution whether or
not there is any mention of the issue in that document. And the
rights that are clearly delineated are secondary to the ones they
have “discerned” there, irrespective of what others may think.
The judges too often view themselvesxv
as the measure of all things.
There
was once a view in the military: “Don't ask, don't tell.” It
was a view that acknowledged that there was a right of privacy, and
it was no one's business what consenting adults did behind closed
doors. (The Supreme Court had already decided that what you did on
your farm was the government's business.) It was, however, viewed as
discriminatory because many considered it as denying their right to
declare openly their sexual orientation. They took pride in their
views and resented anything that might discourage their declaration.
They won their point, and now the courts seem to have decided that
their rights take precedence over others.
Score
one for civil rights and for the measurers of all things.
Next
episode: “Prometheus Bound” – Adam bound?
i December
7, 1903.
ii The
same idea was expressed in various ways in earlier times (eg by
Plato, Aristotle, and Cicero among others).
iv At
least for me.
v Wickard
v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122
(1942).
vi When
my wife and I were courting (it's like dating but if you've never
heard the word it's not at all similar to “hooking up,”
“shacking up,” “doing it,” or whatever the current slang is,
since the risks of pregnancy, AIDS, or other STD don't exist)
contraception was illegal in many states. Then came Griswold
v. Connecticut
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed 2d 510 (1965) and the rules
changed. Griswold v. Connecticut established the constitutional
right of privacy, a treasured and ineradicable right ever since,
even though no such right can be found in the Constitution as it is
written. It is hard to argue with a decision that sanctioned the
use of contraceptives by a married couple – two consenting adults
– behind closed doors, but it's harder to find that “right” in
the words of the Founding Fathers. And labeling the decision
permitting contraception as being supported by the constitutional
“right of privacy” is hard for the layman to understand. It's
established law now, however, and beyond question.
vii Justice
Ruth Bader Ginsburg, was quoted in the New York Times (August 25,
2013) as declaring proudly, and
positively, that the current Supreme Court was “one of the most
activist courts in history ... stunning in terms of activism.” It
is clear that Justice Ginsburg, and others, favor an activist
approach and the establishment of their own social agenda as law,
whether it corresponds to the Constitution they're sworn to uphold
or not.
viii As
I noted earlier, if the Supreme Court says so it's true and we're
all bound by it. In a few weeks I'll discuss the issue of our
obligation to the words and thoughts of those who preceded us.
ix See
footnote vi.
x I'll
also offer an essay on secular religion in the near future.
xi June
24, 2013,
xii The
syndrome is not limited to boys, but that was the case decided.
xiii What
should be the policy for the inevitable gym showers?
xiv Or
obligated? Or should they be forbidden because that, too, would
stigmatize others?
xv And
their ideas about what ought to be.
No comments:
Post a Comment
I know you agree, but you can leave comments anyway.