Our Supreme Court comprises nine justices: Roberts, Alito, Thomas, Scalia, Kennedy, Sotomayor, Kagan, Ginsberg, and Breyer. The first five have been the voting majority in
recent cases involving voting rights, funding of election campaigns, and gun control. Some of the decisions in these cases have been and are both controversial and unpopular
with the majority of Americans. Based on interpreting the language of the federal constitutioon according to the original intent, these highly educated idionts have decreed
that (1) the right to carry a weapon (gun, rifle, pistol, etc.) is an absolute personal right; (2) the right to spend money to elect a candidate or adopt an initiative is
absolute because money equals free speech; (3) since corporations have the same legal status as persons (they can be sued), they enjoy the privilege of spending vast sums of
money to elect their favorite candidates or adopt their favorite policies; and (4) since the constitution specifies that the boundaries of federal election districts shall be
determined by State legislatures, the establishment of citizen commissions to do the job is unonstitutional. I can think of other decisions that I think are the result of
educated idiocy, but these will do as examples.
The men and women who put together the constitution in 1787 were not trying to create something perfect. They were trying to achieve a single goal: create a document that
all thirteen colonies would be willing to adopt to replace the existing weak Confederation with a strong union. They put in various compromises to attract some of the
colonies, particularly those in which the economy depended on slave labor. Two of these compromises were (1) in reapportioning the number of representative districts in each
colony (or state) each slave should be counted as 3/5 of a white (non-slave) person; and (2) white slave-owners would be allowed to carry weapons, concealed or visible, as a
means of intimidating the slaves and preventing slave revolts. In spite of this Second Amendment right, some slaves still revolted and the revolts were repressed forcibly.
The history of the constitution convinces me that it is an imperfect comproomise, put together at the time to make it acceptable to all thirteen colonies. It is by no means
a sacred document. It was and is a means to an end: a way of achieving a central government that is republican in nature, not monarchical, and strong enough to enforce peace at home and display effective strength in dealing with other nations. To decide cases that arise in twenty-first century conditions on the basis of language adopted in the
eighteenth century seems to me to be particularly idiotic.
We've had idiotic courts before, of course. In history courses we learn about the Dred Scott Decision of 1857 that led directly to the Civil War. Before Dred Scott a slave
could sue in federal court to gain freedom and some slaves were successful in such suits. In the Dred Scott decision the Supreme Court ruled that a slave was property, like
a cow or horse and the owner had an absolute right of possession. Dred Scott, the slave, had argued that his master had traveled with him to a state that outlawed slavery
and that when he entered that state he automatically won freedom.
About twenty-five or thirty years later the court decided a dispute between the Southern Pacific Railroad and Santa Clara County in California. The contested issue involved
a fence and a tax. The issue isn't important. What's important is that the court decided that Southern Pacific, a corporation, was entitled to sue and be sued in federal
court. One judge made the off-hand remark that the Southern Pacific corporation was now a person and was entitled to equal protection under the fourteenth amendment. A
corporation was a strange kind of person: "No ass to be kicked and no soul to be damned." More than a century later the court used this decision, one that was not considered important at the time, to justify voiding legal limits on contributions by corporations to political campaigns. The decision is Citizens United.
A related decision is Buckley v. Valeo, in which the Court decided that any law that limits the ability of any person to spend unlimited amounts of money to proclaim his or
her views and support of candidates for public office. The argument was that the first amendment forbids any restriction on free speech, and than therefore limits on money
spent for that purpose violate the constitution. Many states had suh laws and the decision voided all of them. I think the Buckley v. Valeo decision was an egregious error.
Some time, and I hope soon, it will have to be undone, either by another court decision or by an amendment to the constitution.
A good example of a decision that was undone is the "separate but equal" decision of Plessy v. Ferguson (1896). In the aftermath of the Civil War and the 13th and 14th
Amendments, southern states passed laws to create disadvantages for blacks, restrict their rights and keep them separate from whites. Homer Plessy had one-eighth black
ancestry, and his light skin allowed him to ride in the white sections of trains in spite of laws establishing separate facilities for blacks. He had been selected by the
Citizens' Committee to Test the Constitutionality of the Separate Car Law specifically for that purpose. Plessy sat in the white section of a train, announced his ancestry,
and then refused to move to the black section. He was arrested.
The argument against "separate facilities" laws was that they violated the 14th Amendment, the separation indicating an institutional belief that blacks were inferior to
whites. The Supreme Court didn't believe that the laws were a constitutional violation and ruled against Plessy. This ruling entrenched the legal doctrine of "separate but
equal" in U.S. law for more than 50 years. While in Plessy's specific case, the black part of the train was in fact of equal quality to the white part, this was the
exception. During the "separate but equal" years, black facilities were underfunded, poorly maintained and generally anything but equal.
In 1954, the Court heard and decided the case of Brown v. Board of Education. In that case the Court accepted the argument the "separate but equal" could not inherently be
"equal." It overturned Plessy and banned racial segregation. To reach this conclusion the Court used a sociological argument rather than the text of the constitution. There's no legal reason that "separate but equal" isn't equal and fair. Experience showed that it was not.
The present Court, or at least the majority of the justices, have not shown any interest in studying the experience of unlimmited campaign contributions on our political
system. They use the language of the constitution, particularly the free speech portion of the first amendment, to argue that any restriction by law on the abiity of a
person to present his or her views to the public, such as limiting the money spent in publicizing them, is a violation of the amendment. Experience and common sense show
that unlimited publicizing of one person's free speech drowns out the free speech of another perwpn who can't match the funds spent by his opponent. There is plenty of
experience these days to justify the argument that too much free speech drowns out another's free speech. If I were the Court, I would use arguments analogous to those of
Chief Justice Earl Warren in undoing Plessy to undo Buckley. Just as "separate but equal" wasn't legally wrong, "unlimited free speech," although protected by a strictly
legal interpretation of the first amendment, interferes with the "free speech" of someone with an opposing opinion.
The constitution was not intended to be a perfect and sacred document. It was intended to be a means to achieving "... a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity ...," as stated in the
Preamble. We need a Court that will pay attention to the Preamble and consider the practical effects of its decisions rather than simply on the text and interpretations of
"original intent."