Take this Constitution from my cold dead hands

From the perspective of The Left, the virulent hatred of Obama and so- called Obamaism and ObamaCare is puzzling.

He and they seem so moderate, so centrist, so tame. What are the lions of The Right getting so worked up about? Is it Gays in the military (which was delayed until a consensus of military brass including Defense Secretary Gates approved)? The threat (unfulfilled) to close Guantanamo? The continuation of the wars in Iraq and Afghanistan?

Okay, he is a Black Man. But not exactly a Jesse Jackson. His wife and children are also black, but they seem more into fashion, vegetables, and puppies than radical politics. Compare Michelle to Hilary.

Which of his policies are Marxist? Bailing out banks, General Motors, homeowners? Giving insurance companies an enormous pool of additional customers? What’s so revolutionary, so dangerous to right wing values in all of that?

The New Yorker this week contains a piece that made me nod in recognition and say, “Oh, now I get it.”

Jill Lepore, in “The Commandments ... The Constitution and its worshippers”, was about the analogy between constitutional originalism and biblical fundamentalism.

 The common article of faith in the two belief systems is that change is bad. The authors of both documents are viewed as infallible and their products immutable.

 So, when some of us got all gooey eyed hearing the ringing words about time for change we can believe in, many others were terrified to the point of rage by the same words and images.

To those of us who have been appellate court opinion watchers all of our professional lives, the originalist issue is ludicrous, some new clothes for an old emperor.

Back in the golden (or dark - depending on your perspective) age of the 60's and early 70's, the Warren court (and later, even the more timid Burger court) issued a series of opinions that marked serious change in constitutional interpretation. They struck down a hundred years of segregation, defined an array of rights for the accused, ended school prayer, recognized abortion rights and womens’ right to equality.

The backlash was immediate and vicious. The Right, from “The Minutemen” to “The John Birch Society” to William Buckley and Barry Goldwater and Ronald Reagan, ranted about liberal judges who were twisting the constitution to fit their own agenda. Legal scholars then molded this complaint into the originalist doctrine — no interpretation, just reading.

Liberal judges were accused of being result oriented which is a judicial sin. Judges are supposed to be philosophically neutral, objective, letting the chips fall where they may, even if they personally disagree with the result. The Law is the thing.

Over the next thirty years, Nixons, Reagans, Bushes, (and in California, a succession of similar governors) have appointed so-called conservative judges.

In this sense, conservative is a term of art, intended to be literal — their philosophy was to conserve the Constitution, based on the original intent of the founders.

Amazingly enough, this supposed insistence on strict interpretation and asserted revulsion against judges making law has led to results that conform to the political philosophies of the judges and those who appointed them.

The conservative judges proved to be just as result oriented as their liberal predecessors. In the last term the U.S. Supreme Court ruled struck down campaign contribution limits on corporations on First Amendment grounds --- although the Bill of Rights clearly was intended by and understood by the framers to apply to "The People", not businesses. The court also declared D.C.'s gun control law violated the Second Amendment, despite clear language and 250 years of precedent that its purpose was to insure "A well regulated militia ...." 

In law school I was taught that legal opinions were supposed to begin with the facts, proceed to defining the issues, and then an analysis of the law and precedents, followed by a ruling and explanation of the reasoning.  A corollary was that if the reasoning did not support the ruling, then judicial integrity required abandonment or modification of the ruling.  

Intellectually dishonest judges begin opinions with the ruling they wish to make. They relate the facts that support it and ignore or rationalize away those that diminish their view. The issues are defined in ways that insure the preferred result.  The reasoning consists of little more than rationalization, distinguishing opposing precedent without convincing analysis.

In a real sense, originalists are fundamentalists whose faith bars belief in evolution, whether as a science explaining the nature of the world, or as a metaphor for social progress ... that is, change. Their religion will not permit this.

Cal Supremes show "Initiative" and "Restraint"

A corollary to Borenstein’s Law is that measures which are intended to be progressive reforms often evolve into tools for repression.

Opponents of Prop. 8, the anti-gay marriage initiative, have suddenly discovered the flaws in the Initiative process. Like Captain Renault in Casablanca, bloggers and commentators interested in gay rights are shocked by the ease with which perceived "individual rights" of minorities can be extinguished by the majority of voters.

They shouldn’t have been surprised. This has been happening for a long time. The voters have had many chances to show their contempt for individual liberties.

The difference is that a powerful and vocal constituency now see themselves as the victims of the process. A smaller, less powerful interest group, those concerned with the rights of criminal defendants, have whimpered in this wilderness for many years.

It is only a slight stretch to compare this attitude with the lesson derived from Christian disinterest in the fate of disappearing Jews in Nazi Germany ... you know, "when they came for the Jews, I didn't care because I was not a Jew ... now when they come for me, there is no one to complain..."

In 1982, the voters understandably passed a measure ironically titled "Victim’s Bill of Rights", which amended Article I of California’s constitution, reversing a generation of court rulings that "favored" criminal defendants. It included a broad wish list designed by frustrated prosecutors - limiting California courts to minimal federal rules of evidence, especially relating to 4th Amendment issues; requiring "truth-in-evidence" to prevent judges from excluding evidence prejudicial to defendants, such as prior crimes; eliminated the defense of "diminished capacity", returning the law relating to mental illness to the 18th century definition of insanity; purporting to restrict plea bargaining.

In 1990, Proposition 115, the "Crime Justice Reform Act", also called the "Speedy Trial Initiative", authored by a L.A. deputy District Attorney (Sterling Ernie Norris) and the state D.A. association, tilted the playing field further toward the prosecution. Hearsay was permitted in preliminary hearings, defendants were forced to disclose their defenses, among other "reforms."

Now, Chief Justice Ron George, writing for the 6-1 majority of the California Supreme Court, upholding the constitutionality of the the anti-gay marriage initiative which the voters passed in 2008, has implied that he and his brethren have serious misgivings about the ease with which California’s constitution can be altered. In a fine example of the philosophy of judicial restraint, George and his cohorts claim to set aside their qualms and "personal opinions" and decided the case solely on "the law."

The nation’s founding fathers wisely made the process of amending the federal constitution resistant to momentary moods of the majority, requiring super majorities in Congress, or unwieldy constitutional conventions, ratification by two thirds of the states, a lengthy process that insures thorough vetting. Even so, mistakes have been made, Prohibition being the most notorious example.

In the Progressive Era of the early 1900's, Senator Hiram Johnson championed direct democracy as an end run around corrupt state legislatures, which were in bondage to hide bound big business interests which regularly squelched reform measures. Recall, referendum, and initiative were intended to redress the perceived flaws in the system, which impeded needed reforms to "liberalize" the society.

These days, the California legislature is totally constipated, hamstrung by other seemingly brilliant ideas swept in by the initiative process over the past thirty years - proposition 13 (the Jarvis Initiative, limiting increases in property taxes), term limits, and balanced budgets.

California’s Supreme Court used to be a respected protector of individual rights, its holdings followed by other courts around the country. Beginning in the 1970's and continuing today, advocates of "judicial restraint" and "strict constitutional interpretation" have forced the Court to retreat to a reactionary stance that has made the state comparable to, if not worse than, the most repressive states in the South, minimizing individual rights in favor of the will of the majority of the people.