Should the common good trump the Constitution?

jfk-civil-rightsIn June 1963, President John F. Kennedy addressed the nation, urging Congress to pass a comprehensive civil rights act. Setting the stage for the action that he wanted to take, he said, “We are confronted primarily with a moral issue. It is as old as the scriptures and is as clear as the American Constitution.”

This is the type of rhythmic prose that Kennedy and chief speech-writer Theodore Sorensen wrote. But a basic premise has to be questioned. How clear is the Constitution? If it was really clear, would we even need a Supreme Court to interpret it?

Part of the answer is that Kennedy chose to wax poetic rather than to be precise in his language. The Constitution is not clear, and the confusion within it has contributed to everything from the American Civil War to the nearly 100 cases that the Supreme Court must adjudicate each year.

Instead of looking at the Constitution as engraved in stone, we may more accurately view it as an organism that is constantly morphing. Everything is subject to review, and the motivations behind requests for change can be both noble and ignoble.

The preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The catch-all phrase in the preamble is “promote the general Welfare.” A fair question to ask now is how helpful is our Constitution at promoting the general welfare. Since the Constitution enumerates the powers of the judicial branch (federal courts), legislative branch (Congress) and the executive branch (Presidency), there are numerous ways in which the general welfare can either be promoted, or in what seems to be more frequently the case, not promoted.

If we are to analyze how the three branches of government are not succeeding in promoting the general welfare, we must establish what is the meaning of the largely interchangeable terms, general welfare and common good?

A flip, but perhaps, reasonably accurate answer to the question is an adaptation of Supreme Court Justice Potter Stewart’s response to a question about pornography, “I know it when I see it.” And with the “common good,” we know it when we see it. This still leaves considerable uncertainty and confusion, but two recent Supreme Court cases have been decided ways that, to a reasonable, person are clearly deleterious to the common good. Whatever their “constitutionality” might have been is clearly superfluous to the “common good” needs that had to be met.

The first case is the infamous Citizens United v Federal Election Commission ruling of 2010. In this instance, the Court was asked if there could be limitations on political spending, particularly by corporations, labor unions, and Political Action Committees (PACs). The Roberts Court essentially ruled that corporations are people and are free to donate as much as they want. Perhaps in an absolutist interpretation of the First Amendment, this was true. But we have always placed reasonable limits on the First Amendment, such as the prohibition from yelling “fire” in a crowded theater. The reason we do this is to protect the common good.

It is quite clear that unlimited money in politics does four things that are detrimental to the common good:

  1. It distorts exposure of the candidates to the public, with priority going to those who have the most money.
  2. It favors candidates who are close to the moneyed interest
  3. It reinforces a system of individuals and corporations “buying” political favors from elected officials.
  4. Perhaps most insidiously, it favors candidates who are comfortable asking others for money.

When people ask why we have such poor elected officials, the answer often is that we have “the best that money can buy,” but not the best that a real democracy can elect. The Citizens United ruling is clearly detrimental to the common good.

The second Court case is Shelby County (AL) v. Holder. In this 2013 case, the Roberts court ruled that a key part of the Voting Rights Act of 1965 is “unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.” In plain English, what this means is that there is no longer sufficient data to demonstrate that African-Americans face discrimination, particularly with regard to voter access. Since that ruling, many states have instituted modern day poll taxes against African-Americans, other minorities, and the elderly. If the absurdity of that notion wasn’t clear in 2013, it certainly is in 2015. The data that the Court used is clearly negated. Occurrences in Ferguson, MO and numerous other municipalities in the United States have shown that equal rights are hardly here. The Court’s decision clearly aided Republicans (whose constituency is largely made up of people who have few hurdles to clear to vote), rather than Democrats, who typically represent minorities, the poor, and the elderly.

Virtually any case that goes before the Supreme Court involves difficult constitutional questions. There are plausible interpretations for either side. What we have seen most recently is a turn by the Court toward making decisions that are consistent with their individual political preferences. That is essentially what happened in Bush v. Gore in 2000, and Supreme Court Justice Sandra Day O’Connor as much as said so. The problem with that decision and many since is that the justices had a very conservative view of the common good, one that favored the wealthy over most of the rest of America.

If the battles before the Court are going to be about what is the “common good,” then it is all the more important that the American people elect progressive presidents and members of the Senate so that the Court can work for America. The issues of poverty, inequity, environmental protection, health care, and many more are far too important to be left to the parsing of Supreme Court justices over a document that easily lends itself to contrary interpretations. The common good that progressives see is one that will be beneficial to all Americans, including the wealthy. The Supreme Court, as with the legislative and executive branches of our government, must change to view its work as promoting the common good. If that does not happen, we cannot expect the change that America needs.

An encouraging example of valuing the common good more than other qualifications to sit on the Supreme Court is described in Believer: My Forty Years in Politics by David Axelrod. He describes Senator Barack Obama’s consideration of whether or not to vote to confirm John Roberts to the Supreme Court.

“I spent time with Roberts, and came away convinced that he is qualified in every way,” Barack said to us. “He’s obviously bright. He knows his stuff. But I also have this nagging feeling, based on his opinions, that anytime there’s a contest between the powerful and the powerless, he’ll find a way to make sure the powerful win.

Barack Obama was one of 22 senators who voted to not confirm John Roberts.