Government by peek-a-boo

Chief Justice-nominee John Roberts won't say what his views are on abortion, assisted suicide, torture of terror suspects, or the constitutionality of "under God" in the pledge of allegiance. He won't answer any question on any subject that might possibly come before the U.S. Supreme Court.

Judge Roberts is perfectly willing to tell you anything you want to know as long as it's totally irrelevant to anything he might do once he's in power for life as Chief Justice of the United States. His favorite movies are North by Northwest and Doctor Zhivago.

Enjoying the hearings so far?

Well, it's not Judge Roberts' fault. This fine mess is the result of the Supreme Court's eighty-year journey off the rails of the Constitution. The view that it's unethical for a judicial nominee to express his views on policy is a sweet remnant of an earlier time when it was considered unconstitutional for judges to make policy.

The framers of the Constitution deliberately excluded the judiciary from policymaking, something the Supreme Court has been more or less ignoring since 1925, when the justices cut themselves a loophole and then spent the rest of the century bickering over how wide it should be.

The loophole is called the Incorporation Doctrine. It's the view that some rights are so fundamental to the idea of due process of law that the states may not violate them without a very good reason.

It's not widely known that the Bill of Rights, the amendments to the Constitution that guarantee freedom of speech and the rest of the list, did not apply to the state governments, only to the federal government. The Constitution left the states completely free to restrict freedom of speech and the press, limit jury trials, search people's homes without warrants, and compel people to testify against themselves.

James Madison tried to get Congress to approve an amendment that would have prohibited states from violating "the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases." The proposed amendment was voted down in the Senate and never became part of the Constitution.

It was in the 1925 case of Gitlow v. New York that the Supreme Court first suggested that some rights were so important that they ought to apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Where the thing gets sticky is in the selection process. Freedom of speech and the press made the cut in the late 1920s. The right to an attorney in capital cases made the list in 1936, but it wasn't extended to all criminal cases until 1963 and if you thought you had a constitutional right to a jury trial you were wrong until 1968.

This picking-and-choosing business didn't sit well with everybody. Read the appendix to The 37th Amendment to see the justices attacking each other like angry cats in memos and opinions.

It was plain from the beginning that the Supreme Court couldn't require the states to "make no law" restricting freedom of speech, as the First Amendment commands Congress. What about slander and libel? What about incitement to riot? What about disturbing the peace, panhandling, obscenity, burning the American flag?

This is where the thing gets stickier.

The Supreme Court invented a series of tests and standards to judge whether a state's law restricting a fundamental right was allowable or not. For instance, the "strict scrutiny" test, which is applied to some rights and not others, requires the state to show a "compelling" reason that the law is necessary. A rational reason will not do.

Nothing but a subjective personal value judgment separates a compelling reason from a rational reason. Take abortion. Is a state's interest in protecting unborn life compelling or only rational? Compelling to whom? If it's compelling to five sitting justices, then a woman's fundamental right to privacy (if the justices have agreed that it is a fundamental right) may be infringed by a state law. Is it compelling to Chief Justice-nominee John Roberts? He won't tell us.

The story is the same on less emotional matters like police searches. The Fourth Amendment prohibits "unreasonable" searches and seizures. Before the Supreme Court "incorporated" the Fourth Amendment, the people of each state decided what limits they wished to place on local police. After the Incorporation Doctrine, the U.S. Supreme Court became the only authority on what is reasonable. What does Chief Justice-nominee John Roberts think is reasonable? He won't tell us.

What are a state's compelling interests on the life-and-death issues of capital punishment, assisted suicide, detention of terror suspects? Five justices will decide for all fifty states. Where does Chief Justice-nominee John Roberts stand? He won't tell us.

We'll all find out together.

This embarrassment is brought to you by the Incorporation Doctrine, invented by the Supreme Court behind the closed doors of the justices' conference room. It has never been debated or approved by the people of the United States or their elected representatives. It is the reason the most important policy decisions in the nation's life are made by the tie-breaking vote of the justice appointed by the president who happens to be in office when someone on the Court can no longer show up for work.

It's not in the Constitution, and it ought to be replaced by a series of amendments that bring the document up to date in the way the framers intended.

Otherwise we deserve what we get: government by peek-a-boo.


Copyright 2005

For complete source notes, please see the appendix to The 37th Amendment. To read more about the constitutional amendments we need, read A Retirement Plan for Sandra Day O'Connor and Why There is No Constitutional Right to Privacy, and How to Get One.

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