Rights And Wrongs

                                                                                            

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 difficult^iv 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 Woman^vii) 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 girl^xii – 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 permitted^xiv 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 themselves^xv 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).

iii       Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

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.

Because I Said So

(Another in an ongoing – irregular – series on proposed Constitutional changes.

This particular schema will be continued – and I hope concluded – next week.)

There are times when the children just won't do what you want. The gurus currently in vogue tell us that the proper way to deal with them is to explain what you want, and why that is the best method for dealing with the situation at hand. Speak to them rather than taking any physical action. Treat them like adults.

But they're children.

Expecting them to respond to (adult) logic is unrealistic. However carefully you may have considered whatever you're asking of the child, he has a mind of his own. He knows what he wants and an explanation of why the choice is the wrong one may be very nice in a psychological essay, but it often doesn't work where “the rubber hits the road.” And where the child hits his sibling. “This hurts me more than it does you,” is one of the popular phrases heard at this time, accompanying what may be an appropriate corporal responseⁱ but it would be better to avoid the need for it.

So the answer to the invariable “Why?” when the logic proves fruitless is “Because I said so.” After all, you know better than the whining child. At least I assume you know better. But I'm not sure that's always the case. There are times when we all use that line because we lack a logical reason for what we want, but are sure we know best. Whoever argues with us simply isn't as smart as we are.

Which brings me to “judicial activism.”

There are times when it seems that the courts – especially the Supreme Court – take the same approach to what they view as a problem; when Justices expound on their own views and call them law. Judicial review dates back at least to the seventeenth centuryⁱⁱ and was known in the colonies and the United States to be a valid concept before it became a formal part of law in Marbury v Madison in 1803. That case established the authority of the Supreme Court to decide the constitutionality of laws passed by Congress. As Chief Justice Marshall said, “It is emphatically the province and duty of the judicial department to say what the law is.” It was a statement free of irony. Marshall viewed it as a matter of fact. It was what the Founding Fathers had decreed.

And there was, and is, no appeal. Indeed, unchallenged, lower courts can also make a determination of what is permissible under United States law or, it sometimes is claimed, in line with their own value systems. “Aye, there's the rub.” There are times it seems that the law is the law “because I said so.” And once established, the new concept – whether based on law or the confident extralegal views of the courts' decisions – is precedent and, though challenge may be made, it becomes more difficultⁱⁱⁱ to change.^iv

How does this come about? While the vast majority of legal decisions in no way deal with society's value systems, a few do. Who makes the decisions, and is there any way to change them? Is it justified for any group to have “the final say” over what others meant, or may have meant when framing legislation?

I'll try to deal with alternatives to the current system next week, but for now a statement of that system is in order. While there are variations in the choice of local and state judges, in the Federal system judges, including Supreme Court Justices, are appointed rather than elected. One of the major considerations in a presidential election – and politicians forcefully promote this consideration – is that the complexion of the Court will be governed by executive appointments: interpretation of the law will be in the hands of those who hold views comparable to those of the President. The “separation of powers,” and the system of “checks and balances” notwithstanding, the interpretation of law will be in the hands of those whose views are acceptable to the Chief Executive – for it is he who will appoint the justices.

The Constitution does provide for the Senate to “advise” the President and to “consent” to his appointments, and this power cannot be minimized. Congress, moreover, does have the power to impeach Federal judges.^v But, in respect to the outlook of the Court, there would not be so great an emphasis on the importance of presidential appointments if, in the end, the President did not have a major impact on that outlook. The appointment of an individual, with a lifetime position, allows the promulgation of particular views long after the individual who made that appointment has left office. And, with our Electoral College system,^vi that Chief Executive may not even have the support of the majority, as has happened on several occasions in the past.^vii

Is there any hope? Is change necessary? Is it appropriate? I think the answer is “yes” and I'll make some suggestions next week. And with those changes, our laws will have the meaning we consider right because we say so.

Next episode: “Judge For Yourself” – Conclusion of recommendations for improvement of the Judiciary.

i     I'm sure that I'll be faulted for my belief that there are times when physical punishment should not only be tolerated, but is the best response to a problem.

ii    Thomas Bonham v College of Physicians, 8 Co. Rep. 114, 1610. Citation in Wikipedia.

iii    Though certainly not impossible.

iv    The eleventh amendment to the Constitution, in 1795, was specifically enacted to overturn a Supreme Court decision (Chisholm v. Georgia, 2 U.S [2 Dall.] 419, 1 L.Ed. 440) which had been rendered in 1793. Although this took place before Marbury v Madison, it demonstrated both the acknowledgment of the Court's power to overrule a State court and an approved method for change: for remedying the perceived problem.

v     But Congress can only react to those nominated by the Executive branch. They cannot initiate the process. So however many times they reject a presidential appointment, they will only have another such nomination before them, and they can only impeach based on violations of the law, not on the basis of different interpretations of the law's meaning.

vi    A system that should probably be rethought.

vii    If there are more than two candidates for President, a minority choice is possible even if we follow the popular vote. Although a very significant portion of our citizens don't vote – and this, too, means that whoever is elected will only represent a minority – I have no sympathy for those who opt out of the system.