Jurisprudence

In 1973, the Supreme Court intervened to end a complex, often frustrating political process by which women and their supporters were slowly working their way toward a right to choose.

In Roe v. Wade, the Court substituted its judgment for that of the people and their representatives in the fifty states.  The result has been more than forty years of Republican dominance in national politics, and almost complete Republican control of America's heartland.  By rushing in where more prudent jurists should have feared to tread, the Roe Court handed the forces of the Right a new lease on life - at a time when they were close to extinction.

A woman's right to choose is important, but it can legitimately be asked whether it would not have been preferable to adopt a more gradual, political approach which did not have the side-effect of bringing conservatism back from the dead. 

Americans - including American women - have paid a steep price for a victory they would have won anyway. 

This week, as the Supreme Court begins its deliberations in Hollingsworth v. Perry, the justices will have before them arguments urging a ruling as sweeping - and potentially explosive - as the decision in Roe v. Wade.

Liberals and progressives should view this case with clear eyes.  There is danger here.

On the issue of same-sex marriage, public opinion is changing with incredible speed.  If marriage equality is left to the political process, it seems likely that, within a decade or two, same-sex marriage will have become so widely accepted that - even if a few states held out - there would be no serious reaction to a Supreme Court decision recognizing the right to marry as fundamental.

But not yet.  

The Supreme Court could deal liberals and progressives a decisive defeat by handing down a sweeping decision in favor of marriage equality before public opinion on the issue has properly matured. 

This is a time for patience.

In deciding this case, the Court has several options between a sweeping declaration of a new "right to marry" and a decision to sustain California's deplorable Proposition 8. 

It's a complex case, and Americans of goodwill should give careful consideration to these options.

The case began with a decision of the California Supreme Court holding that the state's ban on same-sex marriage violated the equal protection clause of California's state  constitution. 

Later that year - in November, 2008, Californians voted - by a relatively narrow margin - for Proposition 8,  which purported to reverse the state supreme court's decision.

Opponents of Prop 8 sued in state court and lost.  They also sued in Federal district court and won decisively.  In a sweeping decision, Judge Vaughn Walker declared that Prop 8 violated both the due process  and equal protection clauses of the Fourteenth Amendment.  Judge Walker's sweeping language could form the basis of a Supreme Court decision requiring all fifty states to recognize same-sex marriage.

On appeal, a panel from the Ninth Circuit Court upheld Judge Walker's result, but on far narrower grounds.  The Circuit Court's decision was legally more complex, but its logic was compelling.  In essence, the court ruled that - once California's constitution had been interpreted, by California's highest court, as requiring same-sex marriage - that decision recognized a vested right of all Californians to marry. 

In American jurisprudence, there has long been a bias toward the extension of liberty.  This goes back to the Founders' belief in both natural rights - unalienable rights which can be discovered by human reason - and the idea of progress.

The Ninth Circuit ruled in accordance with these ideas - holding that, once a right has been established, a majority of citizens cannot arbitrarily deprive a minority of that right.

The effect was to restore marital equality in California, but not to create a nationwide right. 

The case is now before the Supreme Court as Hollingsworth v. Perry, which was argued this morning.

The Supreme Court will have a number of options.  One, which is considered unlikely, but not impossible, is that the Court will overrule the Ninth Circuit and uphold Prop 8 - thus restoring the ban on same-sex marriage in California.  In that case, Californians would have to undo Prop 8 through the political process.

On the other hand, the Court could adopt Judge Walker's holding and announce the creation - or recognition - of a new fundamental right to marry, regardless of the sex of the two adults choosing to marry.  That is what most advocates of same-sex marriage are so unwisely hoping for.

The Court could adopt an intermediate position, sustaining the judgment of the Ninth Circuit, thus recognizing a right to marry in California, but not nationwide. 

Finally, the Court has another option.  The Obama administration has entered the case, proposing a different line of reasoning which would - in simple terms - erase the line between civil unions and marriages in California and seven other states which have established civil unions but refused to call them marriages.

In American history, there has been a handful of cases in which the Supreme Court has entered politics - acting legislatively in a way which came either too soon or too late.  Thus far, two of these cases have created political revolutions:  Roe v. Wade (the abortion rights case) and Dred Scott v. Sandford, the 1857 decision which declared that slavery could not be restricted by state law - and that African-Americans did not enjoy the natural rights of whites.

Both of these cases created vehement political reactions, effectively reshaping American politics in a direction opposite to the Court's intended result. 

It is entirely possible that the Perry case could be decided without a similar explosion, but American liberals and progressives should approach this case with caution. 

A decision along the lines suggested by the Ninth Circuit would add America's most populous state to the ranks of states recognizing same-sex marriage - and give a boost to those fighting for marriage equality through the political process.

A decision along the lines suggested by the Obama administration would add seven more states to this number - give an even greater boost to advocates of marriage equality - but likely provoke only a mild reaction from the religious Right.

A decision along either of these lines would do justice to millions of gay Americans - and give them encouragement  in persuading their fellow citizens that the time has come to recognize marital equality.

But a more sweeping decision, along the lines of Judge Walker's district court decision, would be fraught with danger.  It might have the ironic effect of strengthening the forces of reaction at a time when America seems finally to be moving - tentatively - in a liberal-progressive direction.

This seems a terrible risk to take - with the potential for snatching defeat from the jaws of victory.

This is a time for judicial restraint - and political prudence.

Be Careful What You Wish For

This week, the Supreme Court will hear two key cases dealing with right of one competent adult to marry another competent adult of the same sex.

The Court's decisions in these two cases will bear directly on the interests of gay Americans who wish to marry - or, being legally married in one state, to have their marriage legally recognized by all fifty states and the Federal government.

They will also say a great deal about the sort of nation we live in.

But they will say more.  The Court's decisions will bear on the continuing process of defining the relative powers of the states vis-à-vis the Federal government.  They will reveal much about the willingness of courts to act in an essentially legislative capacity. 

And they will reflect on the Roberts Court's understanding of the Founders' view of natural rights - the doctrine upon which our nation won its independence and established the present Constitution.

Most Americans will, understandably, view these cases through the lens of the immediate issues involved.  But there are subtler questions involved in these two cases, and citizens interested in the long-term preservation of the United States as a constitutional republic - rather than a mere majoritarian democracy - have a duty to weigh these questions carefully.

It is entirely possible for an American who strongly supports marriage equality to hope that the Supreme Court will decide these cases in ways which would provide for  marital equality in California - and perhaps a few other states - without proclaiming a nationwide right to marriage equality.

Because this truth cannot be gainsaid:  A sweeping decision by the Supreme Court, announcing a nationwide right to marry, would be viewed by many - especially in more conservative states - as yet another case of an unelected bench substituting its judgment for the "will of the people", as determined by the complex process of electoral and legislative politics.

Liberals and progressives should view the consequences of such a decision with great caution - even suspicion.

A few decades ago, most liberals and progressives were delighted when courts acted legislatively.  In those days, the Federal bench was dominated by liberal jurists comfortable with using their power to advance new definitions of freedom and equality.

Today's Federal judiciary reflects four decades of conservative Republican appointees.  Under these circumstances - especially since the jurisprudential atrocity of Citizens United v. FEC - judicial activism has lost a good deal of its luster.

For conservatives, of course, the equivalent of Citizens United - the case which granted corporations many of the First Amendment rights of individual citizens - is Roe v. Wade, the case which established a woman's right to terminate a pregnancy.

Looked at through the lens of legislative policy, most liberals and progressives entirely agree that women should enjoy this right. 

That said, there are good reasons for modern liberals and progressives to regard Roe v. Wade as a dangerous instance of judicial overreach.  There are constitutional and philosophical issues here, of course, but -  in an essay which focuses on the Perry case - it might be well to stick more closely to the present.

In  terms of political history, Roe v. Wade turned out to be a practical disaster.  By short-circuiting the political process - through which proponents of a woman's right to choose were slowly making headway - Roe v. Wade created a political revolution.

The decision disarmed advocates of women's rights.  Having suddenly won what seemed a total victory, they laid down their arms and celebrated.

At the same time, Roe v. Wade outraged abortion opponents, who believed they had been denied the chance to make themselves heard at the polls.  That sense of injustice helped to mobilize the forces of social conservatism as no other contemporary issue could possibly have done.

Evangelical Christians - mostly middle-class Americans whose economic and social interests should have made them natural supporters of progressive policies - flocked to the Republican Party.   Over time, their influence caused the Republican Party to make a long, accelerating shift to the extreme right - even as the GOP regained dominance in American politics.

This conservative era has now lasted for over forty years. 

Thus, while one might applaud the fact that - for the past four decades - American women have enjoyed the right of choice, their victory has been purchased at an enormous price, including:

Every great idea of liberalism and progressivism which has been thwarted or reversed  since the rise of Ronald Reagan.

All the promising leaders - including countless women - who have fallen at the polls, or never bothered to run at all, because of the power of social conservatives.

Every pro-corporate, anti-environmental, anti-civil rights, and anti-woman decision of Supreme Courts appointed by Republican Presidents whose election was made possible by "right-to-life" voters.

All the dead, disabled, widowed and orphaned from several unnecessary wars - or the unnecessary extensions of necessary wars - into which Americans were led by Presidents elected because of their opposition to abortion.

Weighed thus, the question can reasonably be asked whether - as a matter of public policy - the positive results of Roe v. Wade have outweighed the harms resulting from the  polarization of American politics around the issue of abortion.

It is even possible to imagine that a Supreme Court with the confidence to legislate a nationwide right to marry might not also be a Supreme Court with the arrogance to disregard the principal of stare decisis - and reverse Roe v. Wade itself.

The truth is, neither abortion law nor marital law properly belong to the Supreme Court.  

They belong to the arena of politics, and always did.

Roe is now settled law, and should remain so.

But in Perry, the Roberts Court would be wise to avoid another Roe.

And liberals and progressives would be wise to ask themselves whether a sweeping decision in Perry is what they really want. 

Strategy and Tactics I: "Hit 'Em Where They Ain't"

If you've followed this blog for any length of time, I'll assume you are at least interested in the idea of starting a third party dedicated to serving the interests of all of us - the commonwealth - as opposed to a randomly assorted collection of special interests.

Right there, you've chosen to embrace a radical agenda, in the original sense of the word radical, which has to do with roots.  (Think of "powers" in math, or, for that matter, radishes.)

The Founders of the Republic - and English Protestants who settled many of the original colonies - embraced the notion of the Commonwealth as one of the fundamental, moral obligations of good citizenship.  No one expected real, flesh-and-blood human beings to ignore their own interests, but they did expect citizens to balance those interests with a decent respect for the claims of society as a whole.

So I assume you are attracted to the notion of a Commonwealth party.

In past posts, I've made the case that such a party would embrace such values as defending the global environment; moving toward a more equitable and sustainable economic system; curbing the power of corporate interests; restoring the dignity of the individual; reducing the size of government by focusing its energies on essential tasks; and insisting that government address its more limited agenda with ample resources and a commitment to excellence.

I've assumed, too, that a commonwealth party would seek the support of politically aware Americans who have been abandoned by the current two-party system.  It would position itself, at least initially, in the vast gap which has opened up over the last century in the space once occupied by liberal-progressive, or "citizen" Republicans.

Assuming all these things, inevitable questions arise about running candidates for public office.  When a new party does that, it runs the risk of defeating candidates who are "the lesser of two evils" - which, at present, generally means Democrats.

Is it worthwhile starting a new party which will mainly help candidates of today's ultra-conservative Republican Party?  Isn't almost any Democrat better than almost any Republican?

These are serious questions - no less serious for the fact that the answer, to both, is "Of course not!"

To be sure, there are times when electing the lesser of two evils is only common sense.  But there are also times when it would be preferable to demonstrate to the Democrats that they cannot take for granted the votes of Americans who care deeply about global climate change; or serious election reform; or curbing corporate power; or restoring some balance to the distribution of wealth in our society; or designing schools that actually educate our future generations.

And because all of these are issues on which most Democrats provide, at best, lip service, there is a strong case for a new, progressive Commonwealth party.

So - if the goal is to build a third party within a two-party world, while doing as little harm as possible to the causes its members care about - where does one begin?

On this topic, I rather like the advice of Wee Willie Keeler.  Though the quote is sometimes attributed to other baseball greats, it was Wee Willie - a turn-of-the-century outfielder with a lifetime .385 batting average - who gave this shrewd counsel:

"Keep your eye clear, and hit 'em where they ain't."

By "they", Wee Willie was referring to the opposing team's fielders, but the idea works well for a new party seeking to establish itself in real-world politics. 

First off, it works in the sense of running candidates for offices where there is no Democrat in the field.  Some of these are offices which are, by law, elected on a non-party basis - or which seem, to most voters, to be non-partisan in their essential function.

Most of these offices are local - the sort of offices a professional politician would regard as "minor".   But such offices are often very important to a community's quality of life - and they can be equally important in building a new party.

First, because these offices tend to be close to the voters, the personality and reputation of a candidate is often more important than her party label.  Further, less money is needed to create an image, since the candidate will be known - or become known - to her constituents by personal contact.  Thus, an honest, intelligent candidate with constructive ideas and a good reputation in the community will hardly be ignored merely because she is connected with a third party.

Moreover, local offices are the essential training-ground for candidates just becoming involved in politics.  Campaigns for local office are a fine way to introduce a promising young party leader who is destined for bigger things.

Curiously, local elections are also a fine opportunity for older activists - including those who have no higher ambition - to make a contribution.  Campaigns build organization, and a grey-haired candidate can do that as well as a rising star.

Either way, a third party would do well to focus a good deal of its attention to identifying, grooming, and running candidates for local governing bodies.  Such campaigns are a good way to introduce the third party to the public, without confronting voters with the sort of life-or-death, "lesser of two evils" choices which can arise in an election for President, governor, or US Senator. 

They are also a fine way of developing a campaign organization, identifying volunteers and contributors, and allowing leadership to emerge in the arena of action - rather than the forum of mere talk.

The first way a new party can hit 'em where they ain't is to run candidates for local office. 

But there are many other ways a Commonwealth party can follow Wee Willie's advice.  We will explore these shortly.

Bricks and Straw: Who Joins a Third Party?

In American history, most third-party movements have attempted to make bricks without straw. 

That is, their founders attempt to start a party without thinking about who will lead it, who will join it, and who will work for it.

In the past century, most third-party movements have tried to organize from the top down.  Usually, the man at the top has been an extraordinary personality with an outsized ego.  Usually, he has become a candidate for President.

Or, in the case of Minnesota, for governor.

The results of such ego-driven, top-down campaigns have invariably been entertaining, but seldom positive from the perspective of third-party activists.  H. Ross Perot probably elected Bill Clinton, but his movement evaporated.  Ralph Nader certainly elected George W. Bush, but he - and his party - gained only opprobrium.

The core lesson of everything I've written on this blog has been this:  Thus far, the one truly successful third party in American history began with a powerful, moral issue which was directly linked to a necessary change in the fundamental nature of the American economy. 

In 1854, the moral imperative was opposition to human slavery.  The economic imperative was to combine free labor, millions of new family farms, open-range ranching, transcontinental railroads, telegraph networks, and rising industrial cities into a new economy. 

The result?  Within a decade, the brand-new Republican Party liberated millions of human beings from slavery.  Within a few more decades, it had transformed the America of Davy Crockett into a global, industrial power.

By combining two necessary changes - one moral, one economic - the Republican Party made its rise inevitable.  It needed no popular hero to lead it.  Rather, it produced its own hero in Mr. Lincoln.

Among the factors which helped in the Republicans' rapid rise was the new party's ability to harness the support of veteran politicians and political ground troops.  The new third party didn't consist solely of idealists and newbies.  It was led by men (and a few women) who knew politics from the inside out.

The Abraham Lincoln so well depicted in Steven Spielberg's recent film was an old hand at the sometimes dirty work of legislation.  So were the members of his Cabinet, his Congressional allies, and the scrofulous lobbyists he employed to garner votes.

The Republicans were a new party, but they were hardly new to politics.

In our times, a successful new party will - likewise - need to make use of the talents of experienced political leaders and activists.  And the best place to find them is probably not, as many suppose, among liberal Democrats. 

It will be among Republicans, and former Republicans, who have become disgusted with their party's suicidal march to the extreme right. 

Unlike the original Republican Party, which was formed suddenly by the fusion of anti-slavery Whigs and Democrats in reaction to the Kansas-Nebraska Act, the new third party will likely take form more gradually, as Americans awaken to the dangers of slow-moving crises such as global climate change, a soaring national debt, and the corruption and incompetence of the political system.

But the eventual process will be the same:  Disgusted liberal and moderate Republicans, joined by Democrats frustrated over the fiscal or environmental irresponsibility of their own party, will for the core of any new party. 

Journalists and political scientists might choose to call them moderates, but the term will be inapt.  The founders of the new party will be men and women of high principle and practical experience - and it is that which will distinguish them from the practitioners of  contemporary politics.

Who will join them? 

As the Republicans of 1854 attracted the support of new voters and workers, a new third party will need to attract "new blood".  To identify the likely sources of this new support, it will be helpful to look beyond the traditional left-to-right political spectrum favored by journalists and political scientists. 

A particularly useful resource may be found in remarkable study issued periodically by the Pew Research Center for the People and the Press.  Last published in 2011, Beyond Red vs. Blue: Political Typology groups Americans into nine clusters, organized around their positions on a range of issues.

These nine clusters - which can be further subdivided by careful analysis - create a set of political Legos.  At present, the nine big pieces have been arranged into groups supporting the two major parties - or, by rejecting both parties, voting as independents.  But there is nothing inevitable about this arrangement.

Study the Pew typology with fresh eyes, and a thoughtful citizen might envision several alternative arrangements - including at least one which brings together enough voters to create a viable third party.

I invite my readers to read the Pew typology for themselves.  In a future post, I will offer my ideas for rearranging the pieces of America's political puzzle, but I'd be happy to hear from those with alternative solutions.

Beginnings: The Platform of a Third Party

Let's suppose we've decided to start a third party with a legitimate chance of challenging the existing two-party system.  Where would we start?

First, we'd need a platform based on a few strong issues on which the two major parties have either taken the wrong stance, or a weak stance.   Ideally, they would be issues which neither would be likely to co-opt, since that's the usual mechanism by which third parties are destroyed - and the duopoly maintained.

Which is why the environment is a good place to start.  The Republican Party once had a wonderful record on protecting the environment, but Teddy Roosevelt left office over a century ago.  Today, the Tea Party types who drive the GOP agenda talk like they  actually relish environmental destruction - which is part and parcel of the adolescent narcissism at the heart of modern conservatism.

But on the environment, even the Democrats aren't really all that strong.  They talk a good game, but they invariably come up short.  A party wedded to organized labor must always put jobs - even short-term jobs - ahead of the health of the planet.  A party wedded to the poor cannot seriously take steps to raise energy prices - the only thing that will ever persuade Americans to embrace alternative energy.  And a party devoted to seniors will not be especially forward-looking.

Environmental issues - conservation and alternative energy, reducing consumerism and encouraging thrift, planning for a sustainable economy and limiting trade with nations which are big polluters - these should top the list of issues for a third party.

But our party can't be strictly "green".  Green parties never seem to garner much support in this country - probably because they tend to embrace the standard, big-government liberal agenda.  The Green Party, itself, is essentially the Democratic Party plus environmentalism.  

That being true, most of the people who would vote for a Green candidate end up voting Democratic in close elections.

At least, they do if they remember that unpleasant business with Ralph Nader and the 2000 Florida electoral vote.

If we're trying to start a third party with a forceful position on global warming, alternative energy, sustainable economics, and related issues, we'll need to combine this stand with other issues which differentiate our party from the Democrats.

Which brings us to electoral reform.  Most Americans are angered by the way corporate money dominates elections.  And they're horrified at some of the consequences - the ugly, negative spots which dominate electioneering; the way lobbyists, rather than citizens, shape our laws; and a tax system which assures that the very rich continue to get richer, while contributing too little to the common weal. 

A third party which advocated the abolition of campaign contributions from anyone other than individual  American citizens would win a lot of support.  It would also have the advantage of incorporating into its initial DNA an issue which both of the existing parties find absolutely toxic.  The duopoly survives because of corporate contributions, and neither party could easily never give them up.

Electoral reform also requires reforming the tough ballot-access laws which the major parties use to keep third party candidates off the ballot.  And, if we really mean to get serious, we should demand reforms which assure that state legislatures can no longer draw up their own districts - and Congressional districts - to protect incumbents and assure each party a large number of  "safe seats".

Beyond these two clusters of issues, our third party should find a way to challenge the existing, special-interest-oriented legislative agendas of the two major parties.

Perhaps a good beginning would be to enunciate a new approach to the whole question of what the Federal government does - one which embraces the idea that government can be a force for good, and the limitations of government power in a world of limited resources.

I've long thought that one part of such an approach might be to reconsider the meaning of Article I, section 8, paragraph 18 of the Constitution - the famous elastic clause.  Like most progressives, I accept a broad and evolving definition of what is "necessary and proper" for government to do, but I believe this definition can both stretch and contract.  Sometimes, an area which was once "necessary and proper" can cease to be so. 

Government should develop mechanisms for extricating itself from arenas in which it can no longer play a constructive role, or even, sometimes, where its efforts have simply become unnecessary.

In this connection, government should be particularly  vigilant about removing itself from the regulation of personal conduct.  Our third party should consider embracing some of the ideas usually labelled libertarian - particularly in cases where costly programs consume vital resources which could be better devoted to other purposes.

A third party which embraced personal choice in areas such as the private use of marijuana, or the use of lethal drugs as part of a well-designed "right to die", would appeal to millions of Americans both young and old.

Environmentalism; election  reform; a critical position regarding the scope of government; and greater personal freedom in areas not affecting the common weal - these are issues which might form the basis of a new party's platform.

The question is:  Do they represent a coherent philosophy of government?   Do they hold together?