The Old Bald'n Cheney

Justice for All

Suspecting that we were talking past one another, Kelly and I sat down over lunch to hash this out. The following is my interpretation of our new consensus. The following is not a radical remaking of our fundamental premise, merely a deeper investigation.

If we set aside the 14th and 15th Amendments for the purpose of this mental exercise, the doctrine of "separate but equal" is a good example of how a redefinition of right vs. fair can play out in American society. The Framers wrote the Constitution to set up a structure in which the American people could decide issues of morality while respecting the rights of the individual. We know from other societies what happens without a sound constitutional framework: dictatorship or war.

Let us map out the different states of a possible issue and the type of legislation represented by each state:

STAGE	FAIR	RIGHT	TYPE OF LEGISLATION
1	Y	Y	Passed by Legislature and upheld by Courts
2	Y	N	Legislature changes the law
3	N	Y	Invalidated by courts
4	N	N	Unjust law

In this, we find a theory of governance.

We can follow the history of the "separate but equal" doctrine to see how understandings and perceptions of society can change regarding an issue, and how society's changing attitudes can impact a Supreme Court operating within the bounds of constitutional jurisprudence. The 14th and 15th Amendments were passed in the immediate aftermath of the Civil War, in the midst of Reconstruction. Many southern states approved the two amendments as conditions for readmission into the Union, so there were large swaths of society that were not ready to treat their fellow black Americans as equals. Consequently, many state legislatures in the South passed the infamous Jim Crow laws. Congress felt the Jim Crow laws were not right (Stage 2 laws) and passed the Civil Rights Act of 1875, but the Supreme Court invalidated much of this Act, claiming that the 14th Amendment didn't protect against discrimination perpetrated by private entities. After Reconstruction and the return of southern representatives and senators to Congress, congressional interest turned to other matters. When the constitutionality of the southern states' Jim Crow laws was challenged before the Supreme Court in the mid 1890's, the Court issued its famous Plessy decision, upholding the state laws as constitutional.

We believe the Court acted erroneously in Plessy because the Constitution had been amended, in the form of the 14th and 15th Amendments, to define as unfair any form of racial discrimination. The legislatures of the country should not have been able to define segregation as morally sound because the Constitution had removed it from the competence of the moral arena and turned racial equality into a question of fair application of power. Nevertheless, the Court did rule the way it did, so it becomes an interesting study in the progression of an issue from Stage 1 to Stage 4.

When laws are passed at the state or federal level, courts do not give their assent or approval. So unless a specific case is brought before a court challenging the constitutionality of a law, the law is considered to be valid legislation. The legislative branch has deemed an issue, segregation in this case, to be right, or moral. However, when people who feel wronged by the law, they have the right to bring suit before the state or federal courts to challenge the fairness (i.e., constitutionality) of the law and seek relief from the law. This was the case with the Jim Crow laws of the South, and the issue worked its way through the court system, culminating in the Supreme Courts Plessy decision of 1896. The Court validated the South's Jim Crow laws as a fair application of state power, leaving the matter as a Stage 1 issue. There was an alignment of opinion regarding segregation among the state legislatures, the Supreme Court, and the people (as represented then by the super-majority white population).

Nevertheless, the opinion of much of society changed over the first fifty years of the twentieth century. Experiences in World War I, the Great Depression, World War II, and the Cold War worked on the nation's psyche, exposing a fundamental hypocrisy between the words of the Declaration of Independence ("all men are created equal") and the way in which black Americans were treated. Enough of the population had changed their views of equality by the 1950's that a significant majority of America saw segregation as morally wrong and unfair. While many whites in the South viewed segregation as the natural order of the world, most of America as a whole agitated for change, and a critical mass had been achieved. Society had reached the point to where it viewed segregation as a Stage 4 issue. The Supreme Court acted in 1954 (in Brown v Board of Education of Topeka to declare segregation as unconstitutional, but it was too late.

For a Stage 4 issue, the people demand action. Generally, Congress and the courts are release valves for issues that are in Stage 4, and if one of them acts, the demands of the people will be satisfied and stability is restored. However, if both branches ignore the issue long enough, it will only be a matter of time before something will trigger a reaction among the populace to affect change. For slavery, it was the Civil War; for segregation, it was the Civil Rights Movement.

The Founders understood the governance imperative enough to know that these situations can and would occur and that mechanisms are needed to resolve the tension between the people and the state -- the ying and yang of the governance imperative. While the system of checks and balances is normally associated with the balance of power between branches, the genius of the Founders was that they also instituted mechanisms to help keep the balance between the people and the state. The forces that build up between the people and the state are considered in the structure that the Constitution lays out. Checks and balances treat the system but not the disease, which is the tension between the government and the people. This tension will always be there, but the goal is to balance it out. It's in the nature of man and the nature of governing. To understand the governance imperative is to understand the relationship between the governed and those who govern.

And Justice For All

In The Governance Imperative: Response 1: Rethinking "fair but not right" Craig writes,

Despite the opinion of the Supreme Court of the Plessy era, the presence of the 14th and 15th amendments removed promotion of racial discrimination from the arena of legislative competence. The Constitution was amended to reflect a new standard of fairness, which was not applied by the Supreme Court until the Brown decision 100 years later.

My point would be that to have resolved the issue sooner would have to involve a political process. If you want to blame someone or some group, that is understandable. Several questions come to mind about how Plessy and Brown played out in the courts. Are the Honorable justices solely at fault for a court that, when it came to civil rights for blacks, re-enacted the story of the blind men and the elephant? Why wasn't the President on the hook for nominating justices who would turn a blind eye to the inequities of Plessey? Why did it take Brown to wake up Congress to the need for action? Why did it take until 1964 for Congress decide to embed the new definition of what we considered right, or civil rights, into the legal tapestry of the country? Might we say in this case that at the very least, the Supreme Court was the first of the three branches to finally wake up - after 200 years - from the nightmare of slavery, see the light, and declare that "and justice for all" really means "and justice for ALL"?

Response 1: Rethinking "fair but not right"

Re: Rethinking "fair but not right"

Kelly wrote:

"The assumption is that if the legislative branch passed it, they considered it the right thing to do. When the courts uphold it, they are saying that it is fair application of power according to the Constitution."

This is a superb summarization of the thesis of this blog and the role judicial review is meant to play in the American constitutional scheme. All things being equal, I'd agree that the Plessy decision is a good example of morally repugnant legislation that is a fair, constitutional application of power by the state legislatures; however, all things in this case are not equal. Despite the opinion of the Supreme Court of the Plessy era, the presence of the 14th and 15th amendments removed promotion of racial discrimination from the arena of legislative competence. The Constitution was amended to reflect a new standard of fairness, which was not applied by the Supreme Court until the Brown decision 100 years later.

Washington DOMA

A friend e-mailed this link to me a couple of weeks ago on the Washington Defense of Marriage Initiative. This group is protesting a case decided by the Washington State Supreme Court entitled Andersen v. King County. In the ruling, the Court argues that "DOMA [Defense of Marriage Act] is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents."

The Washington Defense of Marriage Initiative group (referenced in the link above) seeks to amend Washington State's marriage laws to limit marriage to those "who are capable of having children with one another," to "require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled," to "prohibit divorce or legal separation when there are children," and to "make the act of having a child together the legal equivalent of a marriage ceremony." The group hopes that the absurdity of such proposed language will undermine the Washington Supreme Court's ruling in the minds of the people.

That such language is unthinkingly assumed to be absurd is another indication of how far American society and jurisprudence have swung in favor of individual rights. Perhaps this is good, perhaps it is not. Nevertheless, there was a time in our history when the main reasons for getting married were to have children, to order society, and to ensure the continuation of the community. Historically, marriage has been, first and foremost, a societal concern and a legally binding contract which society - and, by extension, the State - had an interest in promoting and defending.

There are very important questions attached to the current debate over marriage:

• What is the nature of marriage?
• Does the State have any interest in the state of marriage as a whole?
• Does the State have any business regulating the affairs of married people? What about affairs of unmarried people?
• Should the State be able to limit marriage to certain types of couples?
  
• Is marriage that is defined in the light of individual rights still marriage?
• Can society survive without marriage as it has been?

Whatever the answers to these questions, it would be disastrous for the courts to try to answer them for society. Roe v. Wade was damaging enough, but if the courts continue to push into the realm of legislative concern and short-circuit public debate, the reverberations could destroy our constitutional foundations.

As strange as it might seem, politics is our only hope.

Executive Confusion

Talking heads and historians alike have decried the evolution of the "imperial presidency" for at least three decades now. Nixon's abuses of executive power drove Congress to react and pass a series of measures that sought to restore the balance between the legislative and executive branches. Presidential power has, however, continued to grow, and since 9/11 that growth has accelerated.

And now it would appear that the growth of executive power is manifesting itself among the states as well. Texas Governor Rick Perry recently issued an executive order, mandating that all girls receive the HPV vaccine upon entering sixth grade. Let's set aside the fact that the HPV vaccine is relatively new and untested. Let's also ignore the intensive lobbying in which Merck (the producer of the vaccine) has engaged to make the HPV vaccine mandatory. And let us, for now, assume the appropriateness of having the State mandate the receipt of this vaccine at the expense of parental involvement and decision-making. Beyond all of this, Governor Perry has usurped the legislative process, denied the chance to conduct hearings on this matter to gather expert opinion and citizen input, short-circuited public debate, and removed the people's representatives from voting on a decision that has the force of law.

I don't think that the Founding Fathers thought of these kinds of decisions to rest in the realm of the executive power. It seems to me we have a distorted notion of what executive leadership is supposed to be in our constitutional scheme. The executive branch is supposed to "take care that the laws are faithfully executed" (Article II, Section 4 of the U.S. Constitution). This is the executive power. This is the charge of the President of the United States pertaining to federal law, and this is the charge of the governors of the 50 states pertaining to state law.

Nevertheless, for some time now, it has been the "responsibility" of the president to submit a budget to Congress. Excuse me? When did he become the Budgeter-in-Chief?

For some time now, it has been the prerogative of the president to decide when the United States would go to war. But what of Article 1, Section 8 that gives this responsibility, the ultimate change in legal status between nations, to Congress?

For some time now, it has been expected of the president to set the legislative agenda by providing specific proposals to the Congress. Now the president certainly has a role to play in the legislative process. He wields the veto pen, and he has every right to submit legislation for consideration and debate. But I think we go too far when we make him some sort of chief legislator. I think we would be better served if the president kept himself above the "politics" of the matter and acted more as a symbol of national unity. If the president kept himself to setting policy direction and left details to the legislative process, I think the temptation to blur the lines between the executive and legislative branches would disappear.

If this line had been maintained from the start, the "imperial presidency" would never have had a chance to materialize.

The Governance Imperative: Rethinking "fair but not right"

The Governance Imperative: Rethinking "fair but not right"
While it is true that Civil Rights and discrimination are still a sore subject for some, I believe that it is a good example illustrating the the conflict that can occur when society starts to contemplate whether a law is no longer considered to be fair and/or right. The assumption is that if the legislative branch passed it, they considered it the right thing to do. When the courts uphold it, they are saying that it is fair application of power according to the Constitution. The variable in all this is that societies view change over time. If a law is considered to be no longer the right thing to do, it is the task of the legislative branch to repeal or amend it. If a law, or the application of it, is considered unfair, it is the task of the judicial branch to declare it as such.

Rethinking "fair but not right"

I was reading through our Governance Imperative article the other day and ran across the following two paragraphs:

The outrage expressed by the different parties over "activist judges" usually involves a case where a judge declared something unconstitutional. While that's not new, there is a set of decisions that have something in common to cause the outrage. What seems to cause the most outcry are issues decided by the courts that seek to resolve debates over public morality. The Constitution simply is not concerned with weighing in on moral questions, and any judicial excursion into questions of rightness is inappropriate. Same-sex marriage, access to pornography, and abortion are morality debates which the courts have recently inserted themselves. Civil rights is one that is a close equivalent, except there is a constitutional basis in the 14th and 15th Amendments (passed after the Civil War to outlaw slavery and guarantee equal protection to black Americans) upon which the courts could base their rulings.

And, tangentially, examining the courts' handling of civil rights issues throughout the late-nineteenth and early-twentieth centuries only supports the contention that the courts' recent foray into matters of morality has set them farther adrift from their original charge to determine issues of fairness. The Jim Crow laws, passed by Southern states in the wake of the Civil War to ensure the subjugation of blacks, were good examples of legislation that might have been fairly applied but were not right. The courts were very slow to rule in these matters and only when there were structural issues (i.e., governance) to consider did they step in. Between Plessy v. Ferguson (establishing the constitutional acceptability of forced segregation in the South) and Brown v. Board of Education (mandating racial integration in the schools), the Supreme Court's opinion on what was fair regarding "separate but equal" shifted. The boundaries of structure and fairness had finally been broken, so the courts had to step in. The courts are about fairly applying the law. This is a good case study on how precedence can change; the assumptions of fairness that previous rulings were based upon may be shown to be no longer hold. Once it was shown that the Jim Crow laws could not be fairly applied, the Court declared the "separate but equal" concept unfair, hence unconstitutional.

While I still agree with the underlying principle we were trying to illustrate in the example regarding "separate but equal," I don't think that the example we used is valid or helpful. It's not valid because of the very existence of the 14th and 15th Amendments, which prohibit the states from abridging "the privileges and immunities of citizens of the Unites States" and guaranteeing every citizen the right to vote, regardless of "race, color, or condition of servitude." Of course, this is exactly what the Jim Crow laws did, and for this very reason the Plessy court should have struck them all down as unconstitutional.

Beyond this concern of validity, our use of Jim Crow laws as an example of government action which might be fair but not right tends to cloud the underlying principle. There is still too much emotion and pain behind the Jim Crow laws to speak of them in this way. The wounds are still to fresh to try to speak about them with a historian's cold demeanor. Our use of the word "fair" in the context of the Governance Imperative is a specific one to communicate issues of governance with which the Constitution and the courts are specifically concerned. Our use of the word "fair" is set within contrasting use of "issues of morality," with which Legislatures are specifically concerned. It was never our intention to argue for the fairness of "separate but equal" in the broader sense of "fair." We agree and affirm that the treatment of blacks by the southern states prior to the Brown decision was patently and tragically unjust and unfair.

While our use of the example of the "separate but equal" doctrine might have been a poor example of courts focusing on issues of governance, the issue remains. The courts are called by the Constitution to ensure that the laws of society are evenly applied in accordance with the constitutional principles of balanced, deliberative government, regardless of the general perception of morality behind the laws in question. If a group (or even society in general) has a problem with the morality of a law, then there is plenty of recourse through the legislative and executive branches to change or rescind the law. The courts are not meant to serve that role.

So I propose we strike the example of Plessy as an example of an issue of governance. This means we need a new example of something that is "fair" (in the governance sense) but not right. Any thoughts?

Everything Old is Agnew Again

Part of the Governance Imperative is the acknowledgment of the corrupting influence of power on those who wield it. To be on guard against the mis-use of power is to understand not only the nature of power but the hold that power can have over human nature. An elected official does not reign with impunity for the length of their term.

Have we uncovered enough information in former vice-presidential chief-of-staff Libby's perjury trial to make a case for impeachment of the VP?

Here are questions I would hope are being asked:

- Has the VP used top-secret national security information, the identity/affiliation of Mrs. Plame, for political purposes?
- Did the VP violate the law by allowing or directing a leak of that sensitive infomation?
- Can the VP assert some sort of executive priviledge which authorizes him to declassify sensitive information without going through the normal procedures / channels?
- Can the VP claim to have been acting at the behest or on behalf of the President. This implies the awareness and consent of the activity on the President's part.
- Are the VP's actions covered by the authority vested to the office of Vice-President by the U.S. Constitution?
- Did the VP abuse the power of his office by condoning or otherwise allowing the dissemination of classified information to the press?
- Do any of these factors, by themselves or in combination, rise to the level of "high crimes and misdemeanors"?
- Should articles of impeachment be brought against Vice President Richard Chaney?