Another day, another shit decision by the Roberts court, in the US’s us v. them political system, cries about activists judges tend to alternate depending on the leaning of the court (and the idea that activist court is a liberal position is mostly due to the influential Warren court of the 50s and 60s) so you now hear anti SCOTUS cries from the left, and while there’s certainly much to dislike about Burwell v. Hobby Lobby (or the criminally neglected Harris v. Quinn), I’d rather focus on why I think the very concept of judicial review is flawed.
First of all a bit of a history, judicial review, the concept that the courts enforce the constitutionality of laws is not actually in the constitution. The constitution, that perfect document written with eagle tears mixed with the blood of Jesus forgot to stipulate its own enforcement mechanism, the supreme court pretty much decided to talk that power in 1803 and everybody was like, yeah, whatever, we’ll play along (yeah, yeah, I know it is mentioned Federalist 78, but the federalist papers are not law, thanks god for that, we wouldn’t have a bill of rights if they were).
And since the constitution was mum about who shall interpret it, it obviously doesn’t say anything about how it should be interpreted. Once again, Supreme Court justices nominated themselves for the task, because fuck you, I’m appointed for life, whatchagonnadoaboutit?
There are many approaches to this problem, but they’re generally broken into two main schools of thoughts, originalism and living constitution.
I’m not going to talk about pros and cons of each approach too much (though I’ll be shocked if I can keep myself from making jabs at idiots like Clarence Thomas) but more point out why I think the legal framework is bad under each one of these approaches. Also, I’m not arguing for parliamentary supremacy here (the idea that the legislative body is supreme to all other branches of government), whether or not you even need a constitution is a discussion I don’t want to get into, I’m arguing that if we want to have a constitution and if you want your laws to be subjected to it, we’re going around it the wrong way. In short, my problem with judicial review is with the judicial part, not so much the review.
But first, let’s discuss those two approaches a bit.
Originalism preach adhering closely to the original text, in its most pure and radical form it requires only drawing conclusions from what is explicitly in the text, this form is known as strict constructionism and is so fucking out there, that even people like Scalia say “wooha there boy, let’s not get carried away here”. It’s also worth mentioning that since judicial review isn’t in the constitution, a real strict constructionism means the discipline itself can’t exists.
But enough of this stupidity.
Most originalist judges take a more pragmatic approach, trying to infer the intent of either the text or its writers when making decisions. Originalists like to pretend that they’re just objective readers of text, but realistically, it’s a bit hard to read the mind of dead 18th century people, and once you make judgments about the modern world with its modern problems, your guesses go from wild to out of your ass. I mean you show a founding father a computer and he would most likely say “that magic box got naked hussies in it? Quick! Fetch me a bucket of lard and tell Sally Hemings she can take the night off”. But while I couldn’t stop myself from making a bit of fun of originalism, that’s not the point I really want to make.
If you want to take that approach to reading a constitution, you want your language to be as clear and unambiguous as possible, and as you can easily see from all those 5-4 decision, the legal framework is just shit at this.
And mind you, this is not an impossible problem, the fields of computer science and linguistics can achieve that quite easily – linguists create unambiguous languages out of boredom and pretty much every computer language qualify as such (outside HTML, fuck you Tim Berners-Lee).
Which leave us with the other (and often more liberal) approach – the living constitution.
This approach suggests that the constitution just provide the broad framework and it’s the job of the Supreme Court to adapt it to modern living and modern society.
Being the pinko commie that I am I think this is all well and good, but do we really want fucking lawyers to make that call?
We had countless of books, movies and tv series trying to portray them as heroes (mostly written by people with a law degree) and yet we trust car mechanics and bankers more than lawyers, why do we let them be the final arbitrators of our laws?
And don’t get me wrong, I’m not saying all lawyers are bad or that there weren’t any great Supreme Court decisions, that is obviously silly, but it was good people making good decisions, it wasn’t the legal framework that did it -
It’s a framework that decided that corporations are people and black people aren’t.
It once upon a time said that income tax, labor laws are unconstitutional, but segregation and throwing pacifists in jail is a-okay.
It’s a framework that by its own admission got shitload of stuff wrong, and still put precedence above almost everything else.
Shit, if we’re going to have unelected and appointed for life people work within a shit framework and make decisions based on their political bias and public opinions, can we maybe get a profession that isn’t google complete to ‘jokes’ and ‘sleazy’?
You know what’s else isn’t in the constitution?
That Supreme Court justices have to be lawyers.
Every single one of them was, but there is no reason why we can’t have someone who didn’t went to law school.
Fuck it, I say we put a philosopher, a historian, a couple of scientists (one political and one real) and a doctor there.
Get some English majors too, if nothing else, they would make reading the decisions less of a chore.