The Highest Court

In the early part of the eighteenth century Charles-Louis de Secondat, Baron de Montesquieu, or more simply, Montesquieu, wrote his famous book The Spirit Of The Laws. It had a seminal impact on subsequent political theory and was instrumental in helping James Madison and Thomas Jefferson plan out the United States Constitution. Of special importance was the division of powers as sketched out by Montesquieu. His predecessor, John Locke, had also argued for a separation of powers though he thought the judiciary should be a part of the legislature — after all, who are better to judge of illegal acts than those who made the laws in the first pace?

But Montesquieu thought differently. He thought the judiciary should be a separate power entirely. As he put it:

“Again, there is no liberty if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

“There would be an end to everything were the same man or the same body, whether of the nobles or the people, to exercise those three powers. . . “

What Montesquieu is concerned about here, as was Locke, is the loss of freedom among the citizens if those in power above them be not separate and apart from one another, checking and balancing.

Our Constitution embodied those same concerns and insisted that the Supreme Court be a power separate and distinct from the executive and the legislative. Toward this end, the members of the Supreme Court were not to be elected but appointed for life. They were not to be influenced by special interests or to be in the pocket of the president or the Congress. Or special interests, for that matter. For the most part our history had borne this out: the members of the Supreme Court have shown themselves to be remarkably independent thinkers: those appointed by Republican presidents often voting liberally and those appointed by Democratic presidents voting conservatively.

That was then. This is now. We are finding an increasing tendency in the Court to vote in accordance with those who appointed the judges desired them to vote. Or with those powerful interests that have the politicians elected in the first place. We now talk about “conservative courts,” or “liberal courts,” whereas the Court is supposed to be neither conservative nor liberal: it is to be independent of political machinations. That was the ideal and it is what makes for that vital separation of powers that makes the machine of the Republic run smoothly.

When members of the Supreme Court — or any court for that matter — are answerable to special interests or particular political agendas the ideal is shattered and reality comes crashing through in the form of abuses of power and corruption of the first order. We saw this in the case of Citizens United, a recent decision of the Court to allow corporations to have the same powers as individuals despite the fact that they have none of the attributes of citizens. Yet that decision now allows the corporations to spend millions of dollars in order to determine who is elected to political office. Clearly this flies in the face of the intention of Madison and Jefferson — and Montesquieu.

In discussing the Citizens United decision Judge John Paul Stevens, a former Supreme Court judge appointed by a Republican President, noted that:

“Unlimited expenditures by nonvoters in election campaigns — whether made by nonresidents in state elections or by corporations, by unions, or by trade associations in federal elections –impairs the process of democratic self-government by making successful candidates more beholden to nonvoters who support them than by voters who elected them.

“Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. . . The decision in Citizens United took a giant step in the wrong direction.. . .”

That decision, not to mention a number of more recent decisions, was decidedly based on political considerations and special interests rather than an attempt to discover what the  U.S. Constitution determined was in the best interest of the citizens of this country. We see here, then, a clear example of the imbalance that can be realized when the highest court in the land is beholden to the executive or the legislature — or those, other than the voters themselves, who put the politicians into office. This is the very thing Jefferson and Madison were most concerned about. Indeed, it might be said without exaggeration that the country takes a step “in the wrong direction,” as Judge Stevens suggested, every time the Supreme Court decides what a particular political party, or those who support those parties, insist would be in the best interest of a select few of our citizens. The very thing Montesquieu warned us about so many years ago: “[the court] might behave with violence and oppression.”

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The Purge

Readers of my blogs will know better than most that there is a movement afoot in this country to disenfranchise those who might vote “the wrong way.” The “wrong way” is defined as voting in opposition to those who decide what criteria voters must meet in order to vote — for their candidates. It begins with photo IDs which are now required in a number of states, and now has spread, in Florida, to the movement to purge “illegals.” A Yahoo story recently gave us some of the details that highlight the governor’s push along with the disappointing number of people who seem eager to follow along.

By a margin of 60 percent to 35 percent, registered voters surveyed by Quinnipiac University’s Polling Institute say they back the state voter purge, which has been legally challenged by the Justice Department for appearing to violate the Voting Rights Act and the National Voter Registration Act. The American Civil Liberties Union has also filed a lawsuit to stop the effort.

Governor Rick Scott of Florida is a Republican, of course. I say “of course” because I am not aware of any Democrats who are eager to purge the voting ranks of undesirables. But if there are they are subject to the same sort of contempt that Rick Scott has coming. The problem is, of course, to decide who the “illegals” are and who it is that determines who they are. I dare say Rick Scott has a plan.

I must admit I have a problem with people who speak derisively of “illegals” because it has always seemed to me that we are all on this continent illegally. There was no political code prohibiting the theft of this nation from the indigenous people; but there were in place at the time numerous moral codes which were ignored. If indeed we all believe we are fortunate to be able to share space on this continent, then we should welcome those who also want to be here — for many of the same reasons we and our ancestors wanted to be here. I always supposed that’s what the inscription on the Statue of Liberty is meant to say:

Give me your tired, your poor,

Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!

The weak economy has truly brought some nasty creatures out from under the rocks and the mood of the times is one of hatred and suspicion — and deceit. The idea is to grab the White House and control the Congress at any cost, even if we lose our collective soul in the process. The movement to purge voters from the land, along with other “undesirables” is ugly and not worthy of us as a nation of free people. I deplore it even while I find myself helpless to do anything about it — except vent. It would help to think that Florida is an isolated case because we have come to expect these sorts of political games to be played out in that state. But I know better. We should be ashamed of ourselves!