Our Supreme Problem

By Michael Aprile

Reading the newspaper lately, I have been paying close attention to the editorials about Supreme Court decisions. As with most decisions, in this present world and in the news, there are some good and some bad. Recently, many readers took issue with the decision of the highest court to ban prayer before football games at a Santa Fe school. The newspaper decided to take a poll and it revealed that its readership strongly disagreed with the court’s decision. The Supreme Court had voted 6 to 3 against prayer before the games (about a 66% majority). Ironically, the readers polled voted a little more than 60% in favor of prayer before games (along with many strong opinions, not the least of which was the argument for free speech). Though many feel that there will be formal opposition to this decision, the law of the land is with those Supreme Court Justices. No one will ever know whether their decision to go against the desire of the majority of “the people” was based on the legalistic prose, called opinions (for which the justices are famous), on prejudices, or on having a bad day before making their decisions. I intentionally left off bribery, partly to be kind and partly due to the lack of evidence.

As I dug through and read all the articles written, and then the actual Supreme Court Justices’ opinions and dissents, I started to notice one thing that stood out in common among the commentaries. Almost every decision of great import made throughout the history of the Supreme Court has been decided by the left or right decision of no more than three justices. There are nine justices on the court. Historically, such as with the other two branches of the legislature, one party or the other has chosen a majority of these proponents. Unlike the Congress and the Senate, a justice is not elected. Instead, the justices are chosen by the President (heavily advised by whoever mostly pulls his strings) and then voted on by committee (which also has a majority of a particular persuasion and politic). In many cases, this means that the President and Party in office, at the time the justice is to be appointed, gets their person, who is likely to remember the reason they have been appointed, and the politic thereof, all the days of their seat on the bench. This is all to point out that, humanly speaking, the Supreme Court, at any place in history, has been made up of a majority of opinion that most closely resembles the ideals and beliefs of the residing or appointing party.

If a President believes that prayer is destructive to children (a strange notion in and of itself), then it is likely that any decision to exclude prayer from children, so far as the courts have a say, shall be upheld. That is mostly a given, and it is a delight when things go differently. But the thing I noticed is that at least six or seven of the nine justices always vote toward the same persuasion (on almost every issue - especially the big ones). Three or four justices always vote on one side of the issue and three or four on the other. The persuasion for heady issues, such as pro-life, or pro-choice, is always the same for these justices, no matter what issue is being decided in relationship to these. Little can be done to sway these six or seven justices from their position - not even rights of individuals or justice. On the other hand, there are the remaining two or three justices who, for whatever reason, seem to pull to the side of the party in office and their persuasion. The real factor here, of how a decision will go, depends solely on not nine justices, but on two or three justices who decide the majority vote.

To see the problem here, we must first look at a few definitions. Our pledge of allegiance to the flag, which every school child learns, includes the brief and unobtrusive phrase, “… and to the republic, for which [our country] stands….” So, what is a “republic?” According to the American Heritage Dictionary, a “republic” is “A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them.” Otherwise, this is where our Declaration derives the notion of “We the people….” In a republic, a consensus of the entire people is important, especially when it comes to important issues that effect their lives. So, where does the idea of majority vote and decisions come in? For this one, we must look at the definition of a “democracy.” The dictionary gives several discussions appropriate to this article, which are (1) “Government by the people, exercised either directly or through elected representatives,” (2) “A political or social unit based upon democratic rule,” (3) “Rule by the majority,” and (4) “The ideology and policies of the Democratic Party in the United States.” In moving from a republic to a democracy, we move from a country that is ruled, and decisions are made, by all the citizenry to a country where one or two persons from each state decide for us all. Granted, it states that we can choose government by representation. However, at least three distinct and troubling factors play in that decision. First, we can also choose not to be represented, as a citizenry. The purpose is to have it our way. Second, representatives limit what the entire republic wants, in that even a slim majority wins the decision. In some cases, as many as 49% of the citizenry do not get their choice represented. Often, because not everyone votes, the majority of citizenry may bow down to a minority. Aside from the fact that a “republic” and not a “democracy” was the definitive design of the founding American government, for which many lost their lives, it is important to note that when we choose “democracy” we take on the baggage that comes with it (as I will explain later). A third, but no less important, definition is that of an “oligarchy.” An odd, and less familiar word which is defined as “Government by a few, especially a small faction of persons or families.” This of course was the fear that brought America into being. However, it has great bearing on the problem at hand in America today.

Now let’s get a better understanding of a democracy. The term democracy was first coined in Ancient Greece, almost 2,500 years ago, to describe a political situation which had developed in Athens. Greece at that time was divided into city states of varying population size. Athens, the largest, had approximately 50,000 citizens, others, like Sparta, had considerably less. Each state governed itself differently. Athens had witnessed a real struggle for power between the notables (the rich or “well-born”) and the many (the poor) and this had resulted in an extraordinary political system which went by the name of democracy. The word democracy embodies two Greek words, demos (meaning people) and kratia (meaning rule or authority). If we look at these words carefully we can see that democracy meant rule “by the people” - a term which reflected, with some accuracy, the way in which Athens was governed.

The Greeks had a few assumptions in their rule “by the people” idea of democracy. First was the idea that there was equality before the law and that all citizens, rich or poor, had equal political rights. This meant that citizens had the right to speak in what was called the General Assembly - the forum in which everyone gathered to make decisions about public affairs. Second was the belief that all views (whether held by “educated” people or not) were of equal value. A third assumption was that active political participation in decision-making was a duty of every citizen. This meant that all citizens were expected to concern themselves with public affairs and that a citizen's first allegiance was to the well-being of the city state and not to themselves. Fourth was the assumption that the people and the General Assembly, which were one, was the sovereign body - its decisions were absolute and total authority rested in it. It is from this arrangement that the principle of popular sovereignty arose - the idea that all authority rests in the people. Finally, Greeks believed that by governing themselves directly there would be no separation between the state (the government) and society (the people). Athenians did not choose a government every five years as citizens in modern democracies tend to do, nor did they devise structures which were responsible for governing particular functions of the state. Instead, they continuously governed themselves and in their view, state and society were indivisible - they were one and the same.

It is very important to understand here that the modern form of democracy came to mean the people governed by representation. This was seemingly because the rich and affluent had more influence than did the poor and uneducated. Also it seemed that the property owner had more pull than those without. But, do not let it slip by that these ideas were less the culprits than an enterprising socialism that was creeping into our society in later centuries. Marxist thinking was being adopted by the ever-popular Fabian Society that suggested that favoritism of the wealthy over the working class could best be controlled by a classless society wherein the government would receive the majority of the wealth and would distribute it evenly among the people. This soon developed into the democratic ideals of a welfare state. This has always been a subtle slow-developing form of socialism, made to sound less obtrusive in the modern name social democracy. This still exists and is eating away at world societies, including ours, today.

In the United States of America, a franchise based on property and an electoral system whereby those qualified to vote chose to be governed by persons they considered to be more able than themselves, was instituted. Representation rather than participation was preferred on the grounds, so it was argued, that representation would ensure that the competing interests of each individual would be catered for and that those elected would be able independently to define the best for the community. The society, in general, has been so convinced to fear the popular will that the active participation of the citizen has been replaced in most spheres by the practice of representation. This happens, as a simple matter of accepted practice, in the formal political system as well as in voluntary organizations such as school governing bodies. Although it is clearly the case that everyone cannot be involved directly in organizations all of the time, representation can and does hinder the exercise of popular will.

As was stated earlier, during the twentieth century the meaning of democracy has continued to change. The development of welfare states in some countries after 1945 introduced the idea of social rights, which implied social citizenship and social democracy (Fabianism). The idea of rights and citizenship has become key parts of post-1945 democratic thought.

Now that we have looked at definitions of a republic, a democracy, and an oligarchy, I would like to state my premise and make my point. If we could agree that the design of the country wherein the Supreme Court resides and functions was meant to be a country of free individuals who escaped the tyranny of a monarchy, then we can perhaps agree that it was imperative that all the people would function by self government and not by one or even a few. The problem we are facing today, and for at least the last century, is that our country was founded to be governed by “we the people” (as in a republic). We afforded ourselves the right, if we so choose, to have representation (as in a republic), but was never intended to be forced upon us, as citizens. In a true republic, the representatives would have to come to a collective agreement on a law before it could be passed (as would all the citizenry, if representing themselves). Since we do not enact laws today on this basis, we cannot be said any longer to be a republic.

Becoming a democracy comparatively would open us up to all kinds of limitations. If through representation by the collective citizenry or by chosen representation of the same, we were to vote on a law and a law were either passed or rejected based only on a percentage of the citizens, we would then move to being a democracy. Not only were we not intended to be a democracy, but it is clear to see how democracy lends itself easily to socialism and other watered-down forms of communism, such as with social democracies leading to a welfare state and control by the government. We desired a “government by the people.” “People by the government” is that very faction from which the pilgrims and their ancestors fled. Again, if the majority rules, then there is not “liberty and justice for all” but “liberty and justice for the majority.” The fallacy of majority rule (inherent in a democracy) is evident in the Scripture that states, “Enter through the narrow gate; for the gate is wide and the way is broad that leads to destruction, and there are many who enter through it. For the gate is small and the way is narrow that leads to life, and there are few who find it.” The majority, by the fact of human nature, is not always wise or correct in judgment. It would seem absurd to leave the decision of laws, that often deal with life itself, to the decision of the majority (often misinformed by corrupted values). And, it would seem unjust to make the minority have to live or die for the same.

The worst scenario of them all is the one that we have - the oligarchy. We moved, through the ages, from a country established as a republic, to one fallaciously deluded toward democracy, and ended up, mostly through misunderstanding, as an oligarchy. This is the problem at hand. This problem has been put this way:

“Article III [of the Constitution] puts judicial power in the hands of the courts. The Supreme Court of the United States is mandated as the final court of appeal from the lower state and federal courts. The courts interpret the Constitution -- that is, they have the power of judicial review. Although this power was not explicitly mentioned in the Constitution, the principle was definitively established by Chief Justice John Marshall in the 1803 Supreme Court case Marbury v. Madison.”

The former statement, revealed in a Supreme Court decision, explains that the Supreme Court justices have before them, as was intended, to know so well the Constitution and the framers’ very intent, that they can review any case involving Constitutional issues for possible infractions thereof. When it states that “The courts interpret the Constitution,” it does not mean that the Justices have the right to either change or translate the meaning of the Constitution to mean what seems fitting to their own judgement or persuasion. However, this is exactly what has occurred, for at least the last century or so. If this were not so, how could nine judges, who were supposedly learned in the Constitution and its original intent, disagree on so many decisions brought before them? How, also, could these same Justices error in judgement on some of the most obvious issues? In the case, for example, of the Santa Fe School that allowed a prayer to be said in public that was student led, why could only a minority of Justices see that this was a clear infringement of freedom of speech to deny and thereby outlaw it? In this case, the citizens spoke out loud and clear in objection. It was clear, by polls taken, that this was either an error in judgement or a political persuasion.

This error of the Supreme Court, not to mention many, many others throughout even their more recent history, points up another more vital problem - government by the few.

A close examination of the governing body of the United States today would reveal that we are neither a republic nor a democracy. In fact, I contend that we are closest status to an oligarchy. You may ask, “Why is that?” You might recall the definition of oligarchy as “Government by a few, especially a small faction of persons or families.” To see the point, let’s think, for just a moment, how we are governed. Government, where it meets every one of us, both collectively and individually, is under the laws set down for us to follow. How are the laws decided? Primarily, representatives appointed by the people propose laws through the Senate and the House. That would make us a republic. Then, however, these legislative bodies must put it to a majority vote. That would make us a democracy. But, the laws of this land, when put to the test, are almost always protested. How? By going to the Supreme Court, by appeal. Now this is where the clincher appears. As discussed earlier, the Justices, who of them only three of them, on the average, ever change from their persuasion, weigh the law. They do this by interpreting the way the law acts according to the Constitution. Whatever they decide then becomes the meaning of that law and the intent of the Constitution. Therefore, it does not really matter what the Senate decides about the law, or what the House decides about the decision. The real decision comes from the opinion, right or wrong, of the three deciding justices. That is the government by “the few” that defines an oligarchy.

Now there is only one thing wrong with an oligarchy, it is only two people away from being a monarchy or a dictatorship. These factor make it easy for Socialism to take charge of the government, which is only one step removed from Communism. Unity in the Church is when a congregation is all in agreement before decisions are made. In the same way, a real republic would encourage government by the people by assuring that every person is heard and agrees before passage of a law. The greatest chance to make sure that the people govern and not the courts is to (1) allow the people to have non-partisan justices on the bench, (2) allow only the major decision and cases to be decided in the Supreme Court, and (3), as with a murder case in the lower courts, do not let major decisions be decided in the Supreme Court unless all nine of the justices are in agreement. The decisions, such as abortion, prayer in school, etc., are major and life changing and deserve this attention and nonpartisan concern. We act as though it is vitally important today that we pass all these laws that appear each year. Actually, on closer examination, as few as ten laws would do it.

Of course, it is known that Thomas Jefferson, who also had designs on the Supreme Court and its power within the Government. However, we see a certain cautiousness about the design of this court and an acute awareness of the danger in giving too much power to this body of nine Justices, where he stated:

"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." -- Thomas Jefferson to Spencer Roane, 1821.