Category: Blog

Poetry in the Public Square

Poetry in the Public Square

Is poetry a public or private thing?

One’s love of country could be deliciously stirred by the magic of poetry:

“This happy breed of men, this little world, 

This precious stone set in the silver sea, 

………….

This blessed plot, this earth, this realm, this England . . .”

Historically western poetry concerned itself with very public matters.  In verse we found Kingdoms and Kings, Gods and Fate, Destiny and Mysteries, and Mankind and his cities.  Poetry strutted on the vast stage of great events from Ulysses to Oedipus the King, to Dante’s Divine Comedy to Shakespeare and the souls of his flawed Princes struggling in the midst of cruel happenstance. 

But that all began to change last century.  One wag said, “the poet has no more part in society than a monk in domestic life.”

That sentiment has become debilitating in the age of Political Correctness.  Perhaps it is one reason why so much of modern American poetry is a desert of the inane, the mundane and the profane. Most modern poetry says nothing important that you cannot find canned on the cable T.V. channel of your choice. But does it have to be this way?

Could it have an impact on the public politics it once had?

Archibald MacLeish (1892-1982), an American poet who studied law at Harvard and dipped his toe in the political world, said, “The very last qualification for appointment to public office by and with the advice and consent of the Senate – and I am speaking with some personal knowledge – is, in the eyes of the senators, the practice of the art of verse.”

By contrast, Shakespeare’s most memorable characters included a Moor, a Jew, a conniving and murderous woman, a crippled man, 

“I, that am curtailed of this fair proportion, 

Cheated of feature by dissembling nature,

Deformed, unfinish’d, sent before my time

Into this breathing world, scarce half made up, 

And that so lamely and unfashionable

That dogs bark at me as I halt by them.“ 

And, even more shockingly, he made fun of cross dressing, bestiality and shrewish women. One can just here the gasps!

Could a modern-day Shakespeare be expected to explore in verse his musings on the State of the State? Would his plays be boycotted, his poetry banned from the public-school system.  (oops, I guess that has already been done at some colleges.)

When a man cannot become a judge because he is Catholic and member of a charitable organization as innocuous as the Knights of Columbus, when a comic is pilloried because in the past he did what comics do, make fun of groups of people, how can a poet, be expected to take a risk and hope to be published?

Poetry (and to a large extent Art) has been relegated to the private realm.  And to regions safe, secure and is not allowed to deal with the messy unpredictable life of the public arena. One cannot explore the many sides of mankind, not in the public square, not ever, not in real flawed life ever, not without being crucified, if not now, at some future day, by someone, somewhere who will find offense?

As William Butler Yeats, (1865-1939), an Irish poet intensely involved in the politics of Ireland  said,

“The daily spite of this unmannerly town,

Where who has served the most is the most defamed,

The reputation of his lifetime lost

Between the night and morning.”

How many men and women has that happened to of late?

It is a supreme irony that we all now live more in the public sphere than ever before. As MacLeish said, “We no longer worry much about our private souls.  We worry about the soul of America or about the soul of mankind-the condition of mankind-the human condition.” Yet no longer can anything dangerous ever be publicly ventured about the condition of humankind, the basis of poetry and art.

Lastly, for the person who steps forward, lives his or her art in public, it takes extraordinary courage. And maybe we, living our private lives, should better appreciate all those brave souls who take to the public stage and make the poetry of their lives public for all to see.

Again, Yeats

“The drunkards, pilferers of public funds,

All the dishonest crowd I had driven away,

When my luck changed and they dared meet my face,

Crawled from obscurity, and set upon me

Those I had served and some that I had fed;

Yet never have I, now nor any time,

Complained of the people.”

Phil Cline

For more writings by Phil Cline, visit philcline.com

He Credited Fear

He Credited Fear

At the window he credited Fear,

Regretted his temper drive,

And looked to gloomy vistas

This morning again arrived.

Secrets of giggly girls,

Potent Innocence fails

Divers of missing pearls

Bartered from greasy nails.

Christmas lights harken End,

Heralded toys broken fine,

Discarded in the snowy mud

Cheered by crows atop a line.

Don’t hurry to turn away

Rush to doubt of all beliefs

Enrichments but a brief delay,

Days too few; hours too brief.

Where Boys Walk

Where Boys Walk

Where Boys Walk

Fist clenched, 

Forearm flexed, 

Raised above, hovering,

Before down the hit. 

Cringed below, a boy child’s 

Dread,

And fear.  And Humiliation.

Again.

Hands, kind, reach, 

Stretch, pat on’a back, 

Rest on’a shoulder,

A smile, a nod, he said “good job.”

Eyes open, breath released, hope.

Courage, 

And will. And defiance.

Indomitable.

And between the two places

Boys walk

Back and forth, to and fro

And despite it all, 

Somehow grow.

Cline on the Constitution Privacy of Cell phone data

Cline on the Constitution Privacy of Cell phone data

I am back with a new segment of Cline on the Constitution.

 

Took a little hiatus to explore the Mississippi via Paddle Boat.  Great trip.

 

I then monitored the resumption of hearings on Justice Kavanaugh. Much has been discussed about Due Process and the Presumption of Innocence.  I won’t repeat the various arguments.

 

But a couple of the images did stick with me.  The first was of a cadre of the clueless actually clawing at the doors of the Supreme Court.  I was put in the mind of an army of the undead, like a movie ready made for the approaching Halloween called “Zombies and the Law”.

 

The second image was of Senators ducking out of the hearing to give fiery speeches to the Mob pressing in on the steps of the Capitol.

 

It reminded me of Brutus addressing the Mob after joining with other senators in the assassination of Caesar. These Senators rushing to the microphones after engaging in their own assassination (of character) seemed unaware of the lesson that the Mob may very well turn on them next.  As they did on Brutus and the others when Anthony, in one of the most famous speeches in Western literature, put in their mind where their own self-interest lay.  As Anthony put it after teasing the Mob with the wealth they might gain from dead Caesar’s will: “Now let it work. Mischief, thou art afoot, take thou what course thou wilt!”

 

It didn’t end well for Brutus and his henchmen. Not may it for those Senators.

 

But back to work,

 

Justice Kavanaugh is still in his early fifties, a virtual baby in Supreme Court Justice years.  He and the other youngster, Justice Gorsuch, also in early fifties, may be the closest thing we can hope for as far as a youth movement on the Court that may be prepared to align Constitutional interpretation with modern technology.

 

Let’s talk about that.

 

In my last segment, I lay some groundwork for a direction I believe the Supreme court may take to find its way out of the Katz case “expectation of privacy” quicksand in which they are mired.

 

As you will recall, it was the Katz case which found that a listening device attached to the outside of a telephone booth to capture the conversation of a number’s runner violated a person’s “reasonable expectation of privacy” and therefore, his rights against illegal search and seizure under the Fourth Amendment.  The “expectation of privacy” test was a creation of the Court. And has been in use for fifty years or so.

 

My discussion was based on Justice Scalia’s attempt in U.S. v Jones (government surreptitiously attached GPS device to suspect’s car) to “return to the future” in Fourth Amendment analysis by reintroducing the concept of “property rights.”  The “trespass” to property rights as a basic underpinning for the Fourth Amendment was in turn discussed by individual justices in last term’s seminal case on privacy rights, Carpenter v. United States.

 

Carpenter was suspected of committing a string of robberies in Detroit.  The FBI used a court order (not a Search Warrant) similar to a subpoena to gain access to data about his cell phone use from service providers.  Congress had, through legislation, prescribed this method for obtaining telephone records.  They had attempted to balance the interests of privacy with the need of authorities to conduct investigations. What Congress is supposed to do.

 

The Feds were able to obtain 13,000 of Carpenter’s location points over a 127-day period.  He was convicted. He appealed contending his rights under the Fourth Amendment were violated.  The appellate court rejected his appeal finding he had no “expectation of privacy” in the data because he had willingly given the information to his carriers.

 

And that is the rub. The “expectation of privacy” test becomes problematical when the information is shared with others.  If you willingly give information to strangers how can you say you have a reasonable expectation of privacy?

 

The Fourth Amendment protects the rights of citizens to be secure from unreasonable searches of “. . . their persons, houses, papers and effects.” As I have noted before, the crafters of the Constitution and the Bill of Rights were master wordsmiths. It pays to closely consider the words they used.

 

On its face those words protect a personal right (“their”) and a citizen’s physical integrity (“person”) and his or her property, (“houses, papers and effects.”) But what of location data continuously transmitted to a third-party carrier from one’s cell phone?

 

The Carpenter opinion, crafted by Chief Justice Roberts, begins by noting that in our nation of 326 million people there are 396 million cell phone users.  It acknowledges “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.  A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales. . . Nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

 

The court then dramatically observed, “Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phones’ user.” Furthermore, it can go back in time to retrace a person’s location for as long as the carrier retains the records, normally five years.

 

The constitutional problem, as noted above, is that none of the words of the Fourth Amendment applies. Neither does the “expectation of privacy” test as it had been interpreted prior to the Carpenter decision.  The information sought by the FBI was in the possession of a third party.  It had been willingly given over.  It is not property.

 

Or is it?

 

Chief Justice Roberts did acknowledge what Justice Scalia had argued in Jones.

 

“For much of our history,” Justice Roberts wrote, “Fourth Amendment search doctrine was ‘tied to common-law trespass’ and focused on whether the Government was physically intruding on a constitutionally protected area.” But, he added, the Katz case held that the Fourth Amendment protected the privacy of “people, not places.”

 

Chief Justice Roberts opinion went on to conclude that the location data was protected under the “expectation of privacy” doctrine.  But it was a struggle for him to arrive at such a conclusion.  Two Supreme court cases from the modern era had held information in the possession of a third party was not covered by the “expectation of privacy” test.  These had to be overruled.

 

And he even went to find that the order obtained pursuant to the legislation passed by Congress was not based upon the Probable Cause standard required by the Fourth Amendment.

 

Four separate and strong dissents were penned by Justices Kennedy, Thomas, Alito and Gorsuch. And in these opinions the constitutional basis of the Katz “expectation of privacy” test is challenged and a different pathway to the future is hinted at.

 

Many of the Justices expressed concern over how the law will keep abreast of rapidly changing technology.

 

Justice Roberts quoted a Justice from early in the last century who, when considering innovations in airplanes and radios, wrote the Court must tread carefully to ensure they do not “embarrass the future.”

 

Justice Kennedy, however, in response said, “perhaps more important, those future developments are no basis upon which to resolve this case. . . the court risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.  The judicial caution, prudent in most cases, is imperative in this one.”

 

Justice Kennedy went on to argue the traditional position that there is no “expectation of privacy” in material in the hands of third parties.

 

Both Justice Kennedy and Alito worried over the impact on investigations of corruption and Terrorism. They said, “The court’s new and uncarted course will inhibit law enforcement and keep defendants and judges guessing for years to come.”

 

And Kennedy noted, “this case should be resolved by interpreting accepted property principles as the baseline for reasonable expectation of privacy.”

 

Justice Clarence Thomas, in a brilliant opinion, did an exhaustive historical analysis of the Fourth Amendment and called for the overruling of Katz test. “Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.” He went on to relate how Jurists and commentators, have called the Katz cases, “an unpredictable jumble,” a mass of contradictions and obscurities;” “all over the map,” “riddled with inconsistency and incoherence,” among other descriptions.

 

It is also historically significant, he pointed out, that the Katz decision was issued in the interim between the Griswold case in 1965, the first case recognizing an implied Right to Privacy and Roe v Wade in 1973 extending that newly recognized right to abortion.  Privacy was, as Justice Thomas noted, “the organizing constitutional idea of 1960s and 1970s.” He went on to say, however, that “The organizing constitutional idea of the founding era, by contrast, was property.”

 

He and the other justices criticized how Judges frequently use the looseness of the Katz test to impose their own views on society.  The cases, Thomas wrote “bear the hallmarks of subjective policymaking instead of neutral legal decision-making.” The application of the Katz test about societies expectations of privacy, “bear an uncanny resemblance to those expectations that this Court considers reasonable.”  He said, “self-awareness of eminent reasonableness’ is not really a substitute for democratic election.”  In other words, the Court once again walks into the trap of substituting their own personal views instead of deferring to the democratic process.

 

Justice Alito elaborated on this theme by criticizing Robert’s opinion and its easy willingness to emboss new standards on the subpoena process.

 

“By departing from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs – or picking up the pieces- for a long time to come.”

 

Going all the way back to the Judiciary act of 1789 Justice Alito traced the origins of the subpoena power and established that never before had it been subject to Fourth Amendment analysis.  It was never about the government trespassing on property.  Rather, it was about the ability to investigate crime by requiring the production of records.

 

“The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce.”

 

In sum, Justice’s Kennedy, Thomas, Alito, and Gorsuch each in separate dissenting opinions criticized the use of the Katz case and the “expectation of privacy” test. They either argued that it does not apply or should be dispensed with completely.  And each returned to the original “property/trespass” based foundations of the Fourth Amendment.

 

But in the last segment it was Justice Gorsuch who may have pointed a possible way to the future.

 

He argued that data even in the hands of a third party like a carrier can still be “your” property. He detailed all the different property interests one can have in property held, even voluntarily, by another and that your Fourth Amendment protections can apply, not to sustain an amorphous “expectation of privacy”, but as a property interest which is protected from government intrusion.

 

His opinion provides a road map away from the monster Katz “expectation of privacy” test and a way forward.

 

By looking back.

 

We will have to wait for future decisions to see if the court follows his direction.

 

For more Cline on the Constitution and other writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

 

Privacy and Property

Privacy and Property

This week’s segment of Cline on the Constitution

 

Privacy and Property

 

One momentous decision of the Supreme Court’s last term involved cell-phone privacy.

 

In Carpenter vs. U.S., penned by Chief Justice Roberts, the Court found that data collected from a cell phone that pinpointed a suspected robber’s movements over 127 days involving 12,898 location points violated the target’s privacy rights.  It found that he had “an expectation of privacy” in the data on his cell phone.

 

While most of us assume the information on our cell phones is private, legally it has been far from clear that the protection from governmental intrusion is of constitutional dimension. The Court regularly employs an “expectation of privacy” test. Essentially, a person must have a “objectively reasonable” expectation of privacy in the area to be searched.

 

The “expectation of privacy” test was derived from the landmark case Katz vs. U.S. The court found it that case that a listening device attached to the outside of a telephone booth violated the Fourth Amendment. (Most of my students have never seen a telephone booth. I show them a picture) The court ruled that the Fourth Amendment prohibition against unreasonable search and seizure was violated since the occupant of the phone booth had a “reasonable expectation of privacy.”

 

In order to reach the holding in Carpenter, however, the Roberts court had to ignore two of its own precedents that held there was no “expectation of privacy” in records held by a third party.  In United States v Miller, the court held there was no expectation of privacy in financial records held by a bank and in United States vs. Smith it held there was no expectation of privacy in records of telephone numbers conveyed to the telephone company.  So, can we reasonably say we have an expectation of privacy when our cell phone data is held by a third party, i.e. the entities that operate the servers over which the data flows or is stored.

 

The Carpenter case had to stretch the rationale for the decision to fit the Expectation of Privacy doctrine. And the way it did so gives us a potential roadmap for how the law will develop in the future.  Given the interdependence of modern technology, the Expectation of Privacy test is either going to have be refined or replaced.

 

I will go into more detail on the Carpenter case in my next blog, but I thought it might be worthwhile to explore how the Court was able to arrive at the decision it did.  It gives us a hint of where the jurisprudence might go.

 

One of the cases the Roberts court cited repeatedly was a decision written by the brilliant Justice Antonin Scalia. The case was actually discussed by the nominee in the Kavanaugh hearings though it went over every senator’s head with exception of Senator Lee from Utah.

 

The case was U.S. vs, Jones. The government attached a GPS device to a car and left it on beyond the time authorized by a warrant.  Scalia, to the consternation of the justices in the minority found it was unnecessary to consider the Katz “Expectation of Privacy” test because the government’s action was a trespass against the Property rights of the car owner.

 

And here we pause. Property Rights?  Are they important anymore?  We might want to pay attention since the Far Left has unleased the dogs of socialism.

 

The Fourth Amendment protects “The right of the People to be secure in their persons, houses, papers and effects against unreasonable search and seizure.”  Note it says nothing about privacy rights; what it does talk about are property rights: “houses, papers and effects.” In Scalia’s historical analysis he argued that the framers plainly included this language to protect against the trespass of these property rights by the government.

 

One more example:  The Fifth Amendment provides that no person shall be “deprived of life, liberty, orproperty, without Due Process of Law”. As originally written the provision was a restriction on only the Federal Government.  The Fourteenth Amendment, passed after the Civil War, made it applicable to the States.  “Nor shall any State deprive any person of life, liberty, or property without Due Process of Law.”

 

Were property rights put on a par with rights to life and liberty by the drafters of the Constitution?  In contemporary society, a premium is put on protecting individual rights and liberties.  Okay.  But did the framers, in their wise and prudent efforts to protect us from governmental oppression, know something we have lost sight of regarding the rights to property?

 

Let’s drill down just a little further.

 

John Locke and the natural rights theory, that is that our rights are given us by our maker not granted to us by a government, led to the explicit protection of unenumerated rights in the Ninth Amendment.  And one of those unenumerated rights is the Right of Privacy which we hold so dear today. Privacy encompasses a broad range of “rights” such as abortion, marriage and, now, Cell phone privacy.  Though we traditionally trace the right of privacy to decisions written by the likes of Justice Douglas in the sixties, ironically, the first time the term was used by the Supreme Court was a business/contract case circa 1938.

 

Besides John Locke there were actually two other early influencers on Hamilton, Jefferson, Madison, and John Adams.

 

And now for some concepts I brazenly lifted from studies on the philosophical underpinnings of the Constitution.  Go ahead and read it.  It won’t hurt.

 

Thomas Hobbes (1588-1679) believed Man is most actuated by self-preservation and, therefore, seeks power in all its forms.  Yet Man is not a beast in the jungle and realizes in anarchy only brute force prevails. Man, therefore, surrenders some of his rights to government, in return for protection and order. He, thereby, insures himself a society where cunning rather than strength is the essence.

 

Hobbes’s attitude toward the nature of Man coincided with the old Puritan doctrine of Man’s depravity and justified the “property consciousness of an acquisitive young society.”  Those same utterances can be traced to the Federalism constructs of Alexander Hamilton.

 

John Locke (1632-1704) differed with Hobbes on many things, though they shared the view of the perverse and predatory nature of Man and agreed that government was necessary to prevent anarchy. The form the government should take was where they differed. Like Hobbes, Locke believed that to curb man’s perversity of his own nature, man creates government and in so doing willingly surrenders some measure of his natural rights in return for security for person and property.  However, man does not sign over a blank check.  To Locke, government is a function of the governed, existing by their consent and responsible to them for its actions.  Government is not a Sovereign but rather a Fiduciary, a property concept.

 

All men, Locke said, have a natural instinct for life, liberty, and property.  The first two of those Man holds in common with beasts, but the third, property, is peculiar to man alone. It is in the view of Locke and others justified by the Bible.  “God has given the earth to the Children of men.”

 

He concludes that the rights of life and liberty can to a large degree be obtained in the state of nature, but the right to property is insured only under government.

 

“The great and chief end,” he says, “therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property.”  He felt the right of property was inviolable and that government is bound by social contract to protect that right and may never abrogate it without the consent of the property owner.  He felt that in times of war and emergency, the government can conscript the life and limit the freedom of the individual, but may never arbitrarily remove his possessions.

 

Locke in exalting the three virtues of life, liberty, and property, argued the greatest of these is property.

 

The third philosophical influence, Jacques Rousseau (1712-1778) was a disciple of Locke, but a far more sanguine believer in the natural goodness of Man. He bemoaned Man’s acquisitive nature and discoursed on his belief that in a state of nature where the fruits of the earth are available to all, Man is “a noble savage” ignorant, satisfied, and perfectly free.  When private property is introduced, Man begins to lose his natural goodness.  Government is there, he believed, to protect private property, and therefore is corrupting. A significant concession.  He therefore, advocated for a pure democratic form of government, in which sovereignty rests in the people.

 

Our founders, however, viewed Rousseau’s views dimly and his view that the general good is more important than personal possessions had no appeal to them though his ideas about universal education and the virtues of agrarian life, were later reflected in the views of Jefferson and ultimately, Andrew Jackson.

 

Heavy stuff.

 

But, it does establish that property rights to the framers of the Constitution were extremely important. And to maintain true freedom, they felt, the government should be restricted in interference with an individual’s property rights.  Something we should keep in mind when we contemplate the schemes the government in Sacramento is contemplating.  They have many grand schemes, including universal health care for citizen and non-citizen alike.  They have to pay for many of these grand schemes, not with their money, but with ours. There is no other funding source. And for the average citizens, whose major possessions are their automobiles and homes, one might be concerned that their property rights being whittle away by a government who wants to decide how they are to live, how they are to drive, and how they are to enjoy the property they own.

 

In my next segment I will try to connect this up to how the Supreme Court is going to handle this crossroad.  And how Constitutional law is headed for a collision between Privacy and Property.

 

For more articles on the Constitution and other writings  by Phil Cline, visit philcline.com

 

Laugh like a young man

Laugh like a young man

Trigger Warning. Caution:  This poem tends to glorify being a man.

 

Laugh as a Young Man Laughs

 

Laugh as a young man laughs.

Laugh hearty, laugh out loud,

 

Laugh at facing a day’s hard work,

Laugh at the wobble in your knees

Hauling hundred pound sacks of “taters”

Balanced across your shoulders.

 

Laugh and lug the loads up the ramp,

In the back of the big Mac Truck trailer.

 

Laugh at how damn hot it is gets,

At the sweat dripping off your forehead,

Running in your eyes and stings like hell,

Laugh at the damn forecast cause it’s only going to get hotter.

 

Laugh like a man laughs

As he strips the rotten shingles,

Splashes the black tar, shoots the nails

Into the new shakes on the old roof.

 

Laugh at the beer headache from the night before,

Laugh at needing to piss real bad,

Laugh at the cussing from the young wife

For flirting with a buddy’s girlfriend.

 

Tune up the News, laugh at the stupidity

Of pundits, presidents, prime ministers

And the local councilman

Who sells used cars during the day.

 

Laugh as they scheme to steal your wages

And spend your Money

At night meetings in empty chambers.

Laugh cause you know they’re all thieves,

 

Every one of them.

 

Laugh in your soul at how good to feel

Your muscles strain and push and pull

And dig and wedge, and turn and wrench

Until some mighty thing you’ve decided to move, moves.

 

Sling a sledge, chop an ax down hard,

Split the wood, explode the bark.

Feel the cool sweat return,

Rivulets down the back, over the belly,

 

The way it does when you work hard,

Gets the poison out,

Toughens the sinews, bulges up the arms

Bulks up the shoulders.

 

Breathe in the dirt and dust swirling

From your hits, stomps, kicks, and slams.

Could get you hurt?  Yeah!  And hell, if it does, laugh,

Got to do the work, so the hell with it.

 

Grit your teeth, smile, and “gett’er done” anyway.

Brag, yell, say what you think.  Don’t whisper,

Don’t’ chant, don’t hum nonsensical crap.

Be sure of everything, exclaim your beliefs to everyone,

 

Whoop it up, Shout out, In their face,

Laugh at the soft, weak, snotty effete professors of profanity

Who’ve never thumped a shovel in the ground

Turned over the dark earth, never crumbled clods in their hands

 

And who fear the offense of being a man.

Laugh as they shrink, and if they move to fight, club them back down

Sneer at their bowing and scrapping.

Laugh at their cringe, at their sniveling.

 

Know, by God, you are not wrong.

Laugh and go ahead, go forward,

It’s a job to do and, by God, it feels good to have a strong heart

Beating in a rhythm, a cadence in time with strong legs and arms

 

And the will to build,

Then tear up, then shatter,

Then erect it back up and then

Tear it right down again.

 

Don the pads and take the field

Tackle a runner and slam him to the ground,

Laugh when he moans and utters “good hit.”

Break up a double play and spike the shortstop,

 

Go on the court and Dunk the ball.  Hard!

Make the backboard shake, your defender cower,

Humiliated, mad as hell at you.

Laugh at the fear in his eyes when you drive toward him again.

 

Jump in a muscle car, a combustion engine!

Blow blue smoke in the atmosphere. Break the speed limit.

Hit the pedal, press it all the way down, peg the tach,

Go fast. Push a “vette into a curve too fast and

Pedal down! Accelerate out.

 

Ski head long down the high hills,

Those way beyond your skill.

Walk out on the edge of the cliff

And feel the danger of falling and laugh,

 

Show off and do a funny dance

Almost fall over and down the canyon laughing,

 

Launch on the ocean when its roiling.

Turn the sail boat sideways into the wind,

Race the storm to shore

Dare it to catch you, swamp you.

 

Walk down the avenue in the storm.

Out yell the thunder. Light a smelly cigar,

Lift your face heavenward

And dare the lighting.

 

Shoot a shotgun.  Feel the boom,

The shock, the force, the power,

And laugh at the splitting target.

And fire it again while your ears still ring.

 

Howl and joke with the whores

Standing on the corner.

Laugh cause your wit can never match theirs,

Laugh cause they know how stupid men really are.

 

Jump in the middle of drunken brawl,

Sock somebody in the jaw, sucker punch some dickhead,

Then buy them a drink and grab a hunk of beefsteak or ice pack

For the black eye he gave you right back.

 

And, Man, listen, if they come for us. Go to war. Fight the bastards.

Kill the sons’a’bitches with a knife, a gun, a grenade,

Blow them up with a shell from a tank.

Laugh over their bodies, kick them in the side of the head.

 

Laugh as you ship home

Laugh as you care for the widow and orphan

Because it’s hard, sacrifice is hard,

Duty is hard.

 

But you owe it to your brother

As he owes it to you.

 

And while you’re at it, Kick the bum off your sidewalk.

Laugh at his drunken curses

As he rolls around in the gutter,

Getting his filthy blanket soaked.

 

Then buy him a steak dinner

With mashed potatoes, with all the fixings

And, yes, a beer and laugh at his sorry tale

Cause they are all sorry tales.

 

Drive a cement truck, its big belly spinning.

Keep it going and turning so the cement

Don’t cure, then pour a foundation,

And carve your initials in the wet pavement.

 

Shift the transmission

On the big Caterpillar,

Ram it into gear,

Will it up the mountain road

 

So you can dig out the old road,

Haul it away and scrape level the ground for a new road.

 

Feel the strength in your shoulders and chest

As you wrestle a bridge in place,

Span it over the gorge, build it to last a hundred years.

Laugh at the hundred years.

 

Step heavy and loud into the forest.  Leave the camera.

Fell the redwood tree, chop it down,

Strap it to the long bed truck

And drive it to the mill.

 

Strip the bark, plane it through the giant saws.

Laugh when you tell how you cut off your forefinger

Right up to the knuckle because the damn board jumped

When it bounced off a knot in the wood.

 

Roughhouse with the dog.

Get him fired up and fighting.

Snarling and growling,

See if you can make him bite.

 

And laugh at his barking at you

Because he can’t out rough you.

 

And when you get tired, lay down,

Sprawl across the clean sheets

In your dirty sweaty clothes

And take your pulse and laugh

 

At the life beating, pumping under your wrist,

Deep in your chest, echoing across the canyons and gullies

Of your town, your nation, your region

And reverberating

 

In the laugher of other young men

Of every kind, on every other side of the planet,

In every time and every place.

Laugh it up with the young guys.

 

 

Cline on the Constitution

Cline on the Constitution

Justice Kavanaugh and Letting Sleeping Dogs Lie

 

Tuesday morning the Senate will open hearings on the confirmation of Justice Brett Kavanaugh’s nomination to the Supreme Court.   The candidate has lived an honorable life, is well liked, enjoys a reputation as a good and decent man, and is an experienced and imminently qualified jurist who has served a decade on the most important Court of Appeals in the land.

 

So, what can we expect of the hearing?

 

We can expect the hearing to be interrupted by vulgar screaming demonstrators in mass produced t-shirts, we can expect Justice Kavanaugh and his family to be subjected to sustained scurrilous attacks by self-serving, self-promoting, shameless Senators who have already made up their mind but see theatrical opportunity for personal advancement in permanently damaging the man’s good character.

 

Okay.  We live with that.

 

But hidden among the garbage, we can also expect a few nuggets of Constitutional law worthy of discussion.  Much of it will center on past case decisions of the Supreme Court.  In those discussions, we will probably hear phrases like “Case Precedent” and “Stare Decisis”.  Important concepts.  What do they actually mean? And why are they important?

 

One example relevant to the hearings:  Lines of questioning about Roe v Wade promise to be repetitive. Roe v Wade is the case which first held the Right to Privacy encompasses the right of a woman to terminate a pregnancy under certain circumstances.  The inquiries will concern the nominee’s commitment to Roe v Wade as “Case Precedent” and whether he may or may not vote to overrule the decision. This is where the rules of “Stare decisis” come into play.

 

The words are, obviously, Latin. They mean “standing by the decision.” The term is actually derived the from the Latin phrase, “stare decisis et non quieta movere,”or “stand by matters that have been decided and do not disturb what is tranquil.”

 

A lot of wisdom in that. As Geoffrey Chaucer said in 1380, “it is nought good a slepying hound to wake.” Or as us country boys would say “Let sleeping dogs lie.” But of course, we lawyers have to dress it up a tinge. We say, “It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue.”

 

Makes sense when you think about it.  To the extent possible we want our law to be predictable, stable and secure. We want it to be uniform, efficient and we want courts to act with a modicum of constraint in changing what has become accepted law.

 

One Supreme Court Justice put it thus, “(u)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

 

And as the famous Justice Benjamin Cardozo said, “(t)he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

 

All fine sentiments, but is the worry that changing the make-up of the Supreme Court could endanger established case precedent real?  After all, Chief Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is, . . .”

 

In fact, the Court has reversed itself over two hundred times and three quarters of those were Constitutional decisions. The most famous example is the landmark decision of Brown v Board of Education which reversed previous court’s decision which had sanctioned “Separate but Equal” in the field of education.

 

I recently read an article in a legal journal about a book I knew about, but which I’ve never read and don’t intend to.  The book is an 800-page tome named “The Law of Judicial Precedent.” As Justice Neil Gorsuch stated during his confirmation hearings, “It makes an excellent doorstop.”

Interestingly enough, not only was Justice Gorsuch among many other legal scholars a contributing author, but so was Justice Kavanaugh.

 

The book (I choose to rely on the article’s summary in the legal journal than to read such a monstrosity), theorizes the doctrine of stare decisis applies less rigidly in constitutional cases than it does in statutory cases because the correction of an erroneous constitutional decision by the legislature is well-nigh impossible.  For example, the Congress can more easily pass a law correcting a Court decision about a Coal mine than one interpreting Free Speech.

 

On the other hand, the treatise states, “If at least five members of the Court are sufficiently convinced that the law has gone gravely wrong, then the Court will exercise its prerogative to overrule the earlier case and put things aright.”

 

But like legal matters, even Judges (although local ones especially have to be frequently reminded of this) are not free to willy-nilly rule one way or the other.  The values of reliable precedent must be upheld so the court uses factors in analyzing when a prior case should be overruled.  Because of space concerns I won’t go over all of the factors, but it is well to note that the Court used such an approach in its recent decision to overrule case precedents involving “union closed shops.” After weighing the value and reliability of these case precedents, they found it was unconstitutional to require all government employees to pay union dues whether they belonged to the Union or not.

 

The vote was 5-4.  Gorsuch (and Kennedy) was in the majority.

 

For more Cline on the Constitution and other writings by Phil Cline visit philcline.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Cake Baking case

The Cake Baking case

This week’s segment of Cline on the Constitution.

 

“We Reserve the Right to Refuse Service to Anyone.”

 

When Americans think of Civil Rights, they often think of the Constitution.  That is okay.  But it is inaccurate.

 

Our most fundamental rights are enshrined in the Constitution and Bill of Rights.  There is, however, a distinction between the Bill of Rights and Civil Rights legislation. The Protections contained in the Bill of Rights are directed against Government Action. Civil Rights laws, on the other hand, regulate Private Conduct.  For example, being denied access to a government building may violate the Bill of Rights.  Being denied accommodations at a privately owned inn or restaurant involves Civil Rights law not the Constitution.

 

Civil Rights laws are not part of the Constitution.  They are laws which, like other laws, are passed by the Congress and State Legislatures or, increasingly, local government entities such as city councils or school boards. And as such, unlike the Bill of Rights they can be changed by the same governmental body that passed the law in the first place.

 

When in conflict with the United States Constitution, Civil Rights laws are invalid.  The reason being because the United States Constitution has a Supremacy clause.  It is the Supreme Law of the land. No federal, state or local ordinance, even if it is in the nature of Civil Rights legislation, may violate the United States Constitution nor a citizen’s rights enshrined in our Bill of Rights.

 

The primary Federal Civil Rights Laws were passed by Congress in 1964.  The authority to pass the laws is based upon the Constitutional grant to Congress of the power to regulate Interstate Commerce.

 

What this means is that if it can be rationally argued that conduct by a private business “affects” Interstate Commerce then Civil Rights laws that regulate the conduct is constitutional.

 

Two examples may help clarify. We all remember that during the civil rights movement, one of the tactics used to end segregation in transportation was to have teams of Black people ride buses throughout the South.   State enforced public-accommodations laws restricting where Blacks were allowed to ride in buses were thereby challenged.  Because the private business of busing could be directly shown to “affect” interstate commerce even if the bus never crossed state lines the Civil Rights legislation prohibiting the discrimination by private bus companies was constitutional. On the other hand, attempts by States to regulate gun possession by enforcing gun free zones near schools could not be justified as “affecting” interstate commerce and were struck down by the Supreme Court as violative of the Second Amendment.

 

Besides the Federal Civil Rights laws, there is a whole other layer of Civil Rights laws which have grown up over the last several decades.  The first level is at the State level.  Though some of the States have long histories of acting to prohibit discrimination, their laws were generally limited to discrimination based on “race, color or previous condition of servitude.”

 

Modernly, there are not only State Civil Rights laws, there are County Civil Rights laws and even City Civil Rights laws.  Almost all are directed toward outlawing discrimination by private businesses against groups of persons.

 

And the list of groups has expanded over the last several decades.

 

Among others, modern civil rights laws address discrimination as applied to race, gender, creed, ethnic origins, religious minorities, sexual orientation, marital status, ancestry, disability, illegitimacy and the newest category, gender identity.

 

The list expands or contracts depending on the jurisdiction.

 

And the frontier is being pushed even further.  California’s legislature is in the process of passing a new Civil Rights law requiring half of all corporate board of directors of private business be women. Of course, if they can require such a quota for women, how long will it be before other groups demand equal representation on corporations doing business in the State?

 

What makes for interesting juxtapositions of this tome of Civil Rights legislation at the state and local level is the Constitution of the United States. Actions to enforce civil rights laws, be it by court or commission, is Government Action and, therefore, if the enforcement action impinges on an individual’s rights under the Bill of Rights, the matter is brought full circle.  The question is joined.  Does the Civil Rights law violate the Constitution?

 

This is where a man by the name of Jack Phillips found himself.  Mr. Phillips owns and operates a bakery. He is a devout Christian.  He operates his business according to Christian principles even if it means forgoing income.  He is closed on Sundays, he pays his employees higher than minimum wage, he gives them loans of money in time of need, he refuses to bake cakes containing alcohol, he refuses to bake cakes with racist or homophobic messages or cakes criticizing God and refuses to bake cakes celebrating Halloween even though Halloween is one of the most lucrative seasons for bakeries.

 

Two men asked him to prepare a wedding cake in celebration of their marriage.  He declined.  He offered to prepare and sell them any other baked goods they desired, including birthday cakes, but to create the cake celebrating a marriage of a same sex couple violated his religious beliefs that marriage is a sacred union between one man and one woman. To create such a cake celebrating the opposite of what he believed, he argued, violated his First Amendment rights, both as to the First Amendment guarantee of the Free Exercise of one’s religion and Freedom of Expression.

 

His argument brought to the fore, two rights that are superior to any state or local civil rights ordinance: Freedom of Religion and Free Speech.

 

The State of Colorado made short shrift of the Mr. Phillip’s religious beliefs and ruled he violated the couple’s rights by not baking the cake. One commissioner went so far as to equate Mr. Phillips refusal to bake a cake to debunked justifications for slavery and the holocaust. He said, “and to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”

 

The Colorado commission’s reprehensible treatment of Phillips gave Justice Kennedy a gift.

 

Justice Kennedy is the author of the most important gay rights cases of the era, including the Obergefell case banning restrictions on Gay Marriage.

 

And on his way off the court, he needed to find a way to uphold Phillips without endangering the progress in jurisprudence regarding gay rights he had led the way in engendering.

 

In a 7-2 decision written by Kennedy, the court found for Mr. Phillips.  However, as I said in my last blog entry, they essentially punted. They didn’t find that Mr. Phillips rights were violated by requiring he bake the cake or be fined.

 

Rather, in his majority opinion Kennedy found that the Colorado commission’s treatment of Phillips demonstrated an “unconstitutional hostility to his religious beliefs.”  He went on to fashion some new rules, which may or may not survive the test of time.  But he did not address the Free Exercise or Freedom of Speech issues.  He essentially kicked the can on those issues down the road to be decided by a future Supreme Court.

 

As to the Free Exercise clause, the court is walking a tight rope of their own making.  On the one hand, they fear that if they allow people to assert their religious beliefs in denying service to identifiable groups it would undermine all civil rights laws that seek to govern private conduct. A return to the back of the bus as it were. On the other hand, does government get to make the decisions on what is a valid religious belief and tell citizens they are not free to exercise their religion as they choose? The Constitution explicitly says No.

 

What is most interesting about the case and what has not received a lot of public discussion, but which was very much on the minds of many of the Justices as reflected in the concurring opinions penned by Alito, Gorsuch, and Thomas is what I believe is a major freedom of expression issue and what the court will have to address in the near future. And that is “Compelled Speech.”  It has import in many areas.  From college campuses enforcing speech codes as if they were “re-education camps” to the large internet companies policing points of view.

 

As applied to the Baker, the court acknowledged that Mr. Phillips considered the cakes he made as works of art.  As such they were “expressive conduct” which is protected under the First Amendment.

 

Additionally, as I outlined in my last blog, requiring speech approved by the government is just as violative of the first amendment as restricting protected speech.

 

For example, the court referenced a previous case in which the Court struck down an ordinance requiring the organizers of a Saint Patrick’s Day parade to include a unit celebrating gays and bisexuals.

 

The court explained that they rejected the notion that governments can mandate thoughts and statements acceptable to some groups or indeed all people, as the “antithesis of free speech.” As one of the concurring opinions stated, “One important manifestation of the principle of free speech is that one who chooses to speak may decide what NOT to say and tailor the content of his message as he sees fit.”

 

Colorado attempted to justify requiring the creation of the cake as compelling Phillip’s speech to prevent him from “denigrating the dignity” of same sex couples, “asserting their inferiority” and subjecting them to “humiliation, frustration, and embarrassment.”

 

One justice wrote, “These justifications are completely foreign to our free-speech jurisprudence.” He went on to say, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” And further, “it is not the role of the State or its officials to prescribe what shall be offensive.”

 

The Justice hit the nail on the head when he quoted an earlier case, “If the only reason a public-accommodations law regulates speech is “to produce a society free of biases against protected groups, that purpose is decidedly fatal to the law’s constitutionality, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

 

I foresee many other instances where the Bill of Rights is going to come into conflict with the increasingly aggressive use of State and local ordinances to say nothing of school rules designed to stifle unwelcome opinions by requiring a rote declaration of allegiance to principles dictated by those in authority.

 

Ultimately, such laws harm rather help the cause of gay rights as well as other civil rights by oppressing those who may disagree with what we believe.

 

Stay tuned.

 

But about those signs “reserving the right to refuse service to anyone.”?

 

Forget it.

 

For other articles on the Constitution as well as writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

Speech Issues on Abortion

Speech Issues on Abortion

This week’s segment of Cline on the Constitution continues the review of major cases decided by the Supreme Court in the last term.

 

The court issued opinions on two cases involving Freedom of Speech and Association.

 

In one case the Court affirmed an important principle regarding Free Speech.  In the other they punted.

 

As to the first case, California’s steady drift toward becoming a complete “Nanny State” resulted in a law directly targeting, appropriately enough, anti-abortion pregnancy Centers.

 

In National Institute etc. v Becerra, operators of Pro-Life clinics challenged a State Law requiring that they post information on how to get no cost state funded abortions. The law compelled these clinics to speak against, indeed advertise, the very thing they abhor. It is rather Kafkaesque to, by force of law, require people to advertise for a state funded procedure that is anathema to their core beliefs on religion, health and morality.

 

And that is aside from the fact we were given yet another law, which assumes a free people, are inept and incompetent. In a state like California where obtaining an abortion is literally free on demand, and the State puts out endless reams of materials about to how and where to get an abortion, the “ninny nannies” in the legislature and Governor’s mansion harbor the inchoate suspicion that a woman who wants one might not be able to figure it out how to get one.

 

The second case is the infamous “Masterpiece Cakeshop” case which presented the issue whether the Court would be willing to uphold a governmental decision that someone’s religious beliefs and practices must be cast aside in service to an ever-increasing alphabet of offended persons who can’t be expected to walk across the street to another merchant to buy a damn wedding cake.  The case centers on the intersection of both Freedom of Religion and Freedom of Speech.  I will have more to say about this case next week.

 

Now, back to the California abortion advertiser case.  In an attempt to uphold the law the Ninth Circuit Court of Appeals, those legendary masters of legal legerdemain, attempted to invent a new category of speech. They called it “professional speech.”  This new category would give federal courts the means to ignore the usual requirements that “content based” laws that target speech based upon content have to pass strict scrutiny tests.  It would mean government would be free to regulate such speech as they see fit, ban the speech or, like in this case, even require it.

 

The Supreme Court rightly told them there was no such thing as “Professional Speech” and ruled they couldn’t do that.

 

Justice Clarence Thomas wrote the majority opinion, but it was Justice Kennedy who succinctly stated the trenchant issue.

 

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

 

“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

 

“This compels individuals to contradict their most deeply held beliefs, grounded in basic philosophical, ethical, or religious precepts . . . “

 

The minority opinion written by Justice Stephen Breyer worried that the majority’s opinion might lead to challenges of “informed consent” rules and regulations.  For example, by endangering laws requiring medical professionals to give enough information that the person consenting to a procedure is doing so with full knowledge of the risks and benefits.  That, however, is more of a civil liability avoidance procedure than a constitutional principle.

 

The basic Free Speech principle is that if government cannot restrict a person’s freedom of speech, can they require a people to say something they disagree with simply because the government has decided it might be necessary to protect someone it assumes lacks the intelligence or responsibility to get out and get what they want themselves.

 

The opinion rightly points out that if government determines that a message needs to get to out and they have a rational basis for doing so, then, they have a number of way of disseminating the information, including advertising, themselves.  What they can’t do, is required others to communicate that message for them.

 

Lastly, one can be supportive of the landmark Casey case that recognizes a woman’s right to choose to a terminate a pregnancy under certain circumstances without the government unfairly burdening that choice yet be concerned when the government passes laws as it did here.  When it becomes so involved in advocacy of a position that it violates constitutional principles put in place to protect one’s freedom to follow sincerely held beliefs, government has gone where they may not go.

 

For other writings and articles by Phil Cline, visit philcline.com

 

Cline on the Constitution-Danger of One Person Rule

Cline on the Constitution-Danger of One Person Rule

This Week’s segment of Cline on the Constitution.

 

The Danger of One Person Rule

 

Justice Brett Kavanaugh’s nomination is currently being navigated through the shark infested waters of the United States Senate populated with man eaters hungry to attack, chew up and dismember someone who, by all accounts, is a good and honorable family man with impeccable legal credentials.

 

As usual the “Chicken Little” corps on the left predict the end of civilization as we know it should he be confirmed. That isn’t true.  However, can we expect an impact an on direction of the court?  Sure.  And it is prudent to consider how it may affect the direction of the Court, but without all the folderol.

 

As I contemplate potential changes in the jurisprudence of the Supreme Court, I begin with of the warnings deceased Justice Antonin Scalia gave about how modernly the Supreme Court and the entire federal judiciary is moving the country away from democratic rule. Although it can be seen in rulings and orders of Federal Judges across the country, the Supreme Court’s just competed term provides the most visible example.

 

It is plain from reviewing the cases that the Supreme Court is severely split along ideological lines. It’s may be the worse it been since the Great Depression.  This isn’t the fault of either Justice Kavanaugh nor President Trump.  It has existed for some time. And though historians might disagree, most lawyers with any sense of political realities know why.  It is the result of the Federal Judiciary throwing off the bonds of traditional judicial restraint.

 

I will in future blogs analyze each of the major cases decided in the last term, but I first wanted to take an Eagle’s eye view especially in light of the unbridled rage and hate speech directed at the latest nominee to the Supreme Court.

 

In the just completed term there were 19 split decisions by the United States Supreme Court.  In each case the vote was divided 5 to 4.  These cases involved momentous blockbuster issues. Cases on Immigration, National Security, Voting Rights, Gay Rights, Religious Freedom, Compelled Speech, Abortion, Union Shops, Cell Phone Privacy, and Taxation of Internet Companies like Amazon were all decided 5 to 4. Pause here a moment and consider if the vote is 5 to 4, then the vote of one person decided each of these issues for the rest of us, all 350 million, give or take.  Not a representative Congress, not a nationally elected President. Rather, one person. And an unelected one at that.

 

Of those 19 cases, Justice Kennedy whom Justice Kavanaugh will be replacing was a deciding vote or in the majority in all 19.

 

To be fair, some of the majorities in the 5-4 decisions had surprising alliances.  Justice Gorsuch, the newest justice and one who is identified with the conservative wing of the Court joined his more liberal colleagues to strike down a deportation order because the law written by Congress was unconstitutionally overbroad.  Similarly, Chief Justice Roberts joined the liberal wing while liberal Justice Ginsberg voted with the conservative wing in rewriting the state taxation powers over internet companies like Imperial Amazon.  But those few exceptions aside, by in large, the conservative/liberal split was maintained throughout the term.

 

The number of 5-4 decisions on the important issues of the time, is an indicator that there may something wrong with our democracy.  If the vote of the most learned of our men and women of the law is so evenly split, then the law is not crystal clear.  However, because the Court has set itself up as Regal arbiter, the great issues are decided by one person’s vote.

 

The legal media like to call it a “swing vote.” And that one vote by one person decides who wins and who loses on issues which once were debated in the Congress and the state legislatures.  Instead, we wait on court decisions like an athletic event that has gone down to the wire. And upon announcement cheers or moans go across the land depending on whether your team won or lost.

 

The problem is that democracies are not supposed to be run like this.  One-person rule is anathema to democracy.  It matters little that the swing person may rotate among the same nine persons rather like the presidency of the local rotary club. It’s the wrong institution to attend.

 

Established Constitutional principles of Judicial Restraint compel the Supreme Court to defer certain issues to the political branches, the democratically elected Congress and President. We may soon see the results of the Court’s moving away from this basic principle.

 

First Congress is damaged. We no longer ever have reason to cheer the success of Congress, our elected representatives facing difficult issues, taking testimony from expert witnesses, respecting and considering the regional implications of a law, debating vigorously and then formulating a policy to be applied in all future instances and having processes in place to modify the policy even as its being implemented. And the Congress is damaged in other ways.  It is a basic political axiom that if you can maneuver a hot political issue over to someone else to take the heat, you do so.  And knowing the Supreme Court is all too willing to intervene, Congress has gotten use to abdicating their responsibility.  It is exceedingly easy to attack persons, even good people like Justice Kavanaugh.  It is hard work to actually propose, work with the other party, and pass legislation to address policy issues.

 

And the Presidency is undermined.  We have little time to judge and improve the Executive Branch’s actions.  Even though the expertise might be with the Administration and the framers of the Constitution intended a President to be able to take swift action, modernly every move, every change, a President makes is immediately challenged in federal courts and a lone arrogant federal judge somewhere will most likely issue injunctions and orders on how the policy is to be implemented or prevent it from being implemented at all. And again, the ultimate arbiter the body we seem to have granted the power of pre-approval, is that “One Supreme Court” of nine persons, all educated the same way at the same Eastern schools who can’t even agree among themselves.

 

The process has been further corrupted by calls for lightening quick decisions. The unwise and historically novel approach of the Court requiring pre-approval of all acts of the other two co-equal branches of government has perverted the system of appeals. Briefing schedules are expedited. We do not insist on the time to develop and explore the legal rules, precedents and implications of decisions. There is no time to review numerous amicus briefs from interested groups nor to hear well prepared, skilled oral advocacy.  Now we demand our legal decisions, like everything else happen in the blink of a news cycle. It’s not a good way to apply Constitutional Law and it’s not a good way to run a large powerful country.

 

Have we devolved to one-person rule?  Is that why there is so much animosity against someone of Justice Kavanaugh’s character and credentials?  Is it because we know we are now ruled as Justice Scalia says by a majority of nine persons?  And is it because that person, whether a Supreme Court justice or a federal judge on the lowest rung of the judicial ladder, is an unelected, unaccountable individual with little or no expertise in the subject area and who is poorly equipped to address the complexity of most issues?

 

There is a real danger here. And it is more than a gradual weakening of our democratic institutions.

 

A dangerous consequence may occur in the not too distant future.  The other branches may say No and defy the orders of the Judiciary. Then what?    The Court has no police force, no military, no control of the purse strings. The judiciary under the Constitution has only the power of persuasion. And that was done by the framers intentionally.

 

If the Court continues to fail to adhere to principles of Judicial Restraint which earlier Supreme Courts wisely and prudently followed; if they continue to undermine and supersede the other democratically elected branches of government, the Congress and the President, they may find themselves in a confrontation.  And if on that particular issue they don’t have overwhelming support from the entire public they will surely lose.

 

And if they lose just one Constitutional confrontation of that sort, we all lose for all time.

 

For other postings of Cline on the Constitution visit philcline.com