A Proposal for a Jeffersonian Supreme Court

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The Ninth Circuit Court of Appeals ruling on Mr. Trump’s executive order on immigration will be going to the U. S. Supreme Court. The Supreme Court has claimed, ever since Chief Justice John Marshall’s Marbury v. Madison ruling of 1803, that it is the final arbiter on the constitutionality of a given law. This was, in effect, an illegal seizure of power by the judicial branch of the government from the legislative branch. Thomas Jefferson feared that such a power-play would happen and thus was skeptical of the very existence of a supreme court. He suggested that the Court should play an advisory role on the constitutionality of laws rather than a coercive role. Yet critics may ask, “How can this practically work?” Below, I offer a suggestion.

Suppose there is a question concerning the constitutionality of a law passed by the U. S. Congress or by a state legislature, and the case reaches the Supreme Court. Suppose the court rules the law constitutional. Then it would remain law without further review. But if the court rules, that in the opinion of the majority, it is unconstitutional, then the law would be sent back to the legislative body that passed it for reconsideration based on possible unconstitutionality. If, after such reconsideration, the legislative body decides to rescind the law then the law is repealed. But if, after further review, the legislative body affirms the constitutionality of the law, then it remains law. In that way, the Supreme Court’s ruling is taken seriously, but remains only advisory. A flowchart is below:

supreme-court-reviews-law-for-constitutionality

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The Modern American City

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Portrait of Thomas Jefferson by Rembrandt Peal...

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No reasonable person could deny that there is some good in large American cities–symphony halls, museums, unique shops, and in some cities, classical architecture (Nashville, Tennessee’s building housing their symphony orchestra is an example). Overall, however, the verdict on most of America’s large cities must be negative. Large cities have become cesspools of crime, alcoholism, illegal drug use, prostitution, lonely, isolated people, rudeness–places where the dregs of human existence can hide. This is not to deny that there is much evil in small towns and in rural areas; as Flannery O’Connor pointed out in “Good Country People,” there are wicked people in the country as well as in the city.

That caveat aside, large American cities have, in the individualistic culture of the United States, become havens for evil and vice of all stripes. Often there is very little interaction between people who are strangers to each other, who often come from many parts of the country and from many other countries. The stable neighborhoods necessary to establish healthy human communities rarely exist in the contemporary large metropolis. Although community is breaking down in every area, a person is more likely to find a human community with healthy interactions, families, and stable friendships in a small town or in a rural area. Thomas Jefferson noted this fact over two hundred years ago. He believed that Americans could, despite their individualism, live a virtuous life (in the sense of eudaimonia, Aristotle’s term for enlightened well-being, a well-lived life) in small towns and in small family farms that nurture human interaction and overcome the self-seeking of individuals striving to seek the products of their own desires. Small communities help a person to reach outside himself for the good of those he loves, beginning with his family, then outward to close friends, and then to the wider community. A sense of obligation to the wider community is more likely when the community is small and when people share common values and goals. In large cosmopolitan cities, there are few shared ends, and there are so many people that any obligation outside an illusory self-fulfillment is difficult to accept. The loneliest people live in large cities because they do not know anyone who shares their values, and they can hide in the lies of seeking money, status, or power. Like Citizen Kane, they would be happiest near their family, around people they know and love, and perhaps doing something as seemingly mundane as playing on a sled. Kane tried to help mankind and ended up losing his fellow man.

With the loneliness and isolation of individuals in large cities and the attendant breakdown of families, more and more citizens of large American cities will grow up into vicious, rather than into virtuous, human beings. Vicious human beings can only be controlled, as Thomas Hobbes recognized, by law, by a state that sets up penalties strong enough to deter crime. For less vicious people, contracts may hold them in line for a while, but contracts, already based on distrust, are not the best tool for uniting a human community. In the small town South and Midwest prior to World War II, a man’s word was his bond. Local businesses routinely gave credit to poor farmers while the farmers waited for the harvest so they could pay their bills. It was rare that such agreements were written down on paper. Those who violated their agreements, unless there were extenuating circumstances, were, at the very least, ostracized from the community. Even “rough people” who would get into fights, wound honor the ancient code that if one is beaten, he should walk away. There was none of the barbarism of today’s fights, when the loser of a fair fight tries to murder the winner. In a small community that values honor, such behavior would get the dishonorable person either killed or exiled from that community. Such honor is possible on a small scale. But the notion of “fairness” is defined differently¬† by the various groups in a large city–not all would accept the notion of a fair fight or of honoring one’s word. The overall moral direction in such large cities is inevitably down–until finally people get tired of anarchy and a strongman takes power over the state to enforce order–and people willingly accept such dictatorship in order to feel safe. I pray that the United States does not get to that level, but unless the country can focus less on large urban population centers with large, faceless businesses and more on small towns and small farms with community-based businesses, there will be little hope for avoiding the final end of the republic.

But hope never fully dies–more people are leaving large cities and moving to small towns and to the country. More people are going into gardening and into raising their own food. Even in large cities, unified communities, primarily ethnic, offer a sense of belonging to those people who live in those communities. Eventually, the methods of large corporate factory farms may backfire, and the government will be forced to allow room for the return of small family farms. There are still traditional churches who have not bought into liberal theology or the faddish worship trends of Evangelical Protestants. Not only do these churches affirm tradition, they also become surrogate families for people who no longer have a family in any meaningful sense. In the northern industrial states, large cities continue to shrink, but there are some small towns that are still thriving and have not been affected by the recent massive emigration to large southern cities. I would love an America that was again an agricultural country of small towns and only a few large cities. If American does not return to that state, I pray that some of the stopgap measures I mentioned above will hold enough virtuous people together to prevent total anarchy and to preserve the freedom within constraints of voluntary community that Jefferson desired.

O’Donnell is Right on Church and State

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Cover of "The Naked Public Square: Religi...

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So Christine O’Donnell denies that separation of church and state is in the Constitution, and a law school audience gasps at her “gaffe.” Besides being another confirmation of my negative opinion of the legal profession, this is a good opportunity for going over the First Amendment’s “Establishment Clause” on religion. Just what does the clause say?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

I don’t see the words “separation of church and state.” Enough Supreme Court justices, from Hugo Black onward, imagined that those words were there, and through their vivid imaginations they ruled that the First Amendment meant “separation of church and state.” For those who follow in the footsteps of Justice John Marshall and support the tyranny of the federal court system, this is the end of the matter. Those individuals with more critical minds will ask whether the original intent of the Founders was to separate church and state. Now the deist Thomas Jefferson referred to “a wall of separation between church and state,” but that is not in the constitution. What the First Amendment does is forbid an established church such as the established churches still found in some European countries. It also allows freedom of religious expression. There is no justification in the Constitution for what the later Father Richard John Neuhaus called “the naked public square,” that is, the public realm stripped of all religion. Atheists and secularists, who often time are more haters of God than nonbelievers in God, have erotic dreams about removing religion totally from the public square, as if their position is truly a “neutral” position. Their position is not neutral; rather it is positively secularist and anti-religious in orientation. This was not the intent of the Founding Fathers. Many of them were deists, true, but they still believed that a religious populace was a necessary check on rabid individualism that could lead to moral chaos.

O’Donnell’s critics will say “The Constitution means what the Courts say it means.” I cannot argue with people who support judicial tyranny. And for postmodernists who deny that there is any meaning to any text other than what the reader says the text means, I have no rational arguments to use against people who are fundamentally irrational.¬† Although I’m not the biggest fan of Rush Limbaugh, there is one statement he says that makes lots of sense: “Words mean things.” Words are not arbitrary in meaning, and that includes the words of the Constitution. The fact that judges have read into its words things that are not there does not change the fact that the Constitution has an original meaning. And that meaning does not include “separation of church and state.”