More anecdotal evidence of the double standard came last month from a case in Toledo, Ohio. Dawn Fisher, a 33 year-old woman, was sentenced to (what else?) house arrest for seducing a fourteen year-old boy. (She subsequently gave birth to the boy’s child.) But what was truly remarkable was that, at sentencing, the judge remarked on the double standard:

“I don't understand the distinction. But there is a distinction, apparently. … I don't know how something like this could happen."

For comparison, The Toledo Blade story offers up this interesting tid-bit:

Former Scott High School teacher John "Mitch" Balonek was convicted of sexual battery for a sexual relationship with a 16-year-old female student and sentenced in May to three years in prison.

Sentencing variations such as this undoubtedly occur—though some high profile cases like that of Mary Kate Laterneau suggest it’s not that simple. But, is there a “double standard”? Or, more precisely, does the phrase “double standard” provide the best metaphoric description of whatever it is we’re witnessing here?

I don’t think so.

In fact, there’s something downright crude about the “measurement” metaphor—the notion that sentencing disparities can be summed up in terms of units on a measuring stick or numbers on a dial. In that paradigm, solutions are easy: just add some numbers here, turn the dial there, and presto-chango, everything is back in balance.

Balancing the numbers certainly makes legal sense, but doing so doesn’t address the underlying cultural issues at play. More to the point, it doesn’t confront the way the justice system does its cultural work. Yes, the courts resolve disputes, punish the guilty and exonerate the innocent. But they also do much more. They are one of our most important venues for reinterpreting values and renegotiating social relationships.

The heart of the double standard is not that we expect men and women to exercise different degrees of control over their sexual behavior (in the sense that, relative to adults, we hold children to lower standards of all manner of conduct). The real issue is that we use the justice system to enforce different meanings of male and female sexuality. In a sense, we reject the notion that individuals own their own sexuality. Another person’s sexuality is important because of what it tells us about ourselves—and we have some fairly well articulated fictions about ourselves that we expect others to confirm. And when they don’t, we’ve got the law.

The recent film, “Sleeping Dogs Lie,” is a usefully bizarre illustration of how public ownership of personal sexuality operates outside the justice system. The film follows the romantic troubles of Amy, an exceedingly “normal” middle-class young woman with a very un-normal secret: in a moment of whimsy, during her college years, she once performed oral sex on her dog. What’s so instructive for us about this act is that, in the confines of the film, it has no meaning whatsoever; it is drained of all emotional or psychological content—at least for Amy. But for everyone else in her life, it comes to mean everything.

It’s important to recognize just how existentially meaningless the film makes the act. It is the film’s opening scene, hence it is presented without explanation or precedent. There is nothing shown or suggested to indicate the act (which happens off screen) imamates from any psychological condition. Afterwards, we see her retching over the bathroom sink, telling us that she herself thinks the act repulsive. She has no desire to repeat it, and never does. It does not define her sexual profile. And, as she says throughout the film, “it’s just a thing that happened.”

It becomes quite meaningful, however, after her unctuous fiancé goads her into confessing something naughty so that they can get, you know, really really close. But instead of getting what he truly wants—some safe, kinky-lite anecdote to juice up his fantasy life and confirm that he’s trapped himself a genuine, frisky little sex kitten—what he gets instead is something just plain weird. So he recoils. “Tell me you didn’t tell me what I think you just told me,” he says with all the indignant adolescent horror he can muster up.

Amy’s problem is not that she’s crossed some line or gone too far. It’s not that her boyfriend would have been more tolerant if she had only French-kissed her dog, then stopped before she got carried away. And it’s not that there’s a double standard at play, as if somehow the pleasures of bestiality are reserved just for guys. The problem is that her twerpy boyfriend cannot avoid interpreting her confession (and the sexual interests he erroneously believes it betrays) as a commentary on himself. Though he never says it, what he finds so repulsive about her secret is that it seems to tell him “I’d rather fuck dogs, but if I can’t marry one, you’ll have to do.”

And the meanings mushroom from there. As the story gets out (which it does rather quickly) everybody begins calculating just what this new information themselves and the cartoon world they’ve built for themselves. It’s especially rough for Amy’s stick-up-the-ass father. For some thirty years he’s cocooned himself in a little storybook home life—a Plexiglas perfect existence he “settled for” as compensation for giving up his dream of being a writer. Amy was the fruition of that life, and her (caricatured) innocence his best evidence that it wasn’t really a bunch of nonsense. For Daddy, Amy’s little sin is nothing less than proof that his whole life has been a lie.

Amy’s exquisitely poised mother, a mini-mouse wannabe with secrets of her own, is even more devastated. For the first time, she tells her, she is “ashamed to be her mother.” It’s an ironic admission: Amy was her mother’s alter ego, the paragon of virtue she pretends to be, but fears she’s not. Amy’s indiscretion destroys that alter ego—and in the process, her mother’s ability to believe in her own fictional decency. She’s ashamed of herself, and the self-loathing is deadly. By the film’s third act, she’s dead.

But cheer up, it’s not all doom and gloom. For Amy’s older brother, her confession is downright liberating, life affirming. Twenty-six years earlier, he was the apple of his parent’s eye. But upon his sister’s birth his life began a long, downward slide. Now he is a slimy, mean-spirited, self-indulgent, racist, jittery meth- freak looking for any evidence that he’s at least better than somebody, anybody. And when he overhears Amy spilling the beans to her fiancé, he’s finally found it—and he’s eager to spread the news. Amy’s degradation is his salvation

Sexuality is public property.

Just as Amy’s little whimsy “belonged” to everybody else except her because it played the wrecking ball against the fictive brick and mortar of their constructed lives, so too does the meaning of Debra Lafave’s crime belongs to us. Only here, crime isn’t the right word. Crimes are committed by people who take things that don’t belong to them to gratify otherwise normal appetites. To call the LaFaves of the world criminals is to say that it is normal for women to be sexually drawn to younger boys, which is to say something quite disturbing about the social meanings of maleness—that it’s perfectly reasonable to evaluate men strictly in terms of their sexual prowess.

Male sexual power has, of course, always been central to the male mystique. But this is largely true because it is both existentially and metaphorically meaningful. That is, sexual power also represents social power, spiritual power, intellectual power, financial power and the like. And perversely, as it were, our cultural narratives tell us that these other modes of power are suitable alternatives—indeed, allegorically identical—to sexual potency (though in real life they may not be at all). In mythological terms, anyway, rich guys, smart guys, wise guys don’t need to perform in bed. But it doesn’t go the other way. Men who can be identified in exclusively sexual terms, who have closed off all the metaphoric implications of their physicality, are not “real” men. And women who go for them are just not normal.

What a “normal” Debra LaFave would tell us is that the definition of valid masculinity that middle age guys like me cling to is a charade. That a normal woman might just want a little sex toy in the form of a rambunctious, hormone-drunk fourteen-year old buck. By this reckoning, not only does the emperor have no clothes, but he’s got a potbelly as well.

Can’t have that. Double standard? No way! That bimbo is just plain crazy—bipolar.

Too bad. Works of art, whether they take the form of fiction, film, painting, or what-have-you, are more than one owner’s intellectual “property.” They are the terms a society uses to define itself. Art tells us about our past, helps us settle on a meaning for the present, and enables us to imagine the future we wish to build. Through art, we crystallize our values, dramatize our failings, and orchestrate our hopes.

This special role art plays in a culture’s internal conversation complicates the very idea of ownership. Of course, artists are entitled to the commercial rewards of their work—but forever? Surely there needs to come a time when a work has become so successful, become so much a part of our common language, has integrated itself so fully with the way we think that we have a right to say “it’s ours.” Fitzgerald doesn’t own The Great Gatsby, we do. Hawthorne doesn’t own The Scarlet Letter, we do. And because we own them—and can reinterpret them in a thousand different ways—we’re able to talk about ourselves more deeply.

This point has been made often and elegantly by Larry Lessig and others. Moreover, they’ve offered some very useful answers with their Creative Commons. But as Lessig himself would likely acknowledge, his is only an attempt to ameliorate the ills of a deeply troubling, entrenched legal environment. There are two problems and they complicate each other: First, of course, there is the “duration” issue—the unsavory ways commercial interests have extended their monopolistic control over art, thus restricting the public’s ability to use the art in public debate. The second problem is complicated by the duration issue: “fair use.” If works of art could more quickly come into the public’s sphere, restrictions over its use would be less troublesome. But the fact that they are protected for so long creates profound political and moral problems.

Consider, for example, Blanch v. Koons, decided in November of last year and affirmed yesterday by Judge Sacks of the Second Circuit. The facts, as summarized by William Patry, are:

plaintiff, for $750 dollars, did an advertisement for Gucci silk sandals. The photo depcited a woman's lower legs and feet (wearing the silk sandals) resting on a man's lap in an airplane cabin. The photo appeared in a six-page feature in Allure magazine. Koons was commissioned by Deutsche Bank and the Guggenheim Museum to create a series of seven paintings, which he later called "Easyfun-Ethereal." One work, "Niagara," was at issue. In Niagara, Koons (or more accurately, perhaps, his "assistants") depicted several sets of women's lower legs juxtaposed against food and landscapes. He intended to "comment on the ways in which some of our most basic appetites -- for food, play, and sex -- are mediated by popular images. ... By reconceptualizing these fragments as I do, I try to compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media." And Fox News is fair and balanced. Koons made good money on the project, but Blanch admitted Koons' use didn't harm her career, upset any plans she had for her work, or decrease its value.

What was at issue here, legally—but more important, politically as well—was not just the commercial ownership of the original work. It was the political significance of the original work. And its political significance is not unrelated to its commercial value. Indeed, Koons’ own work depended upon the commerical viability of Blanch’s work. In one sense, the commercial success of the original work made it an appropriate target for the critical reinterpretation.

In Patry’s commentary on the case, it seems reasonably clear that the law has evolved to accommodate just such concerns. And, indeed, the case was decided fairly. But this does not resolve the larger problem. How many advertisers, or studios, or music labels or media companies believe it is in their financial interest to protect their products from being reinterpreted for use as social criticism? Every one of them, I bet. And how many “struggling artists” have a legal team at their disposal—especially one ready to go up against those well financed commercial powerhouses? Few, I imagine.

Good for them—and good for us.

I don’t know anything about New Jersey law, but the ever clever and rights-stingy Eugene Volokh seems to tolerate (if not fully accept) the court’s legal reasoning. Two kinds of arguments were made: a fundamental rights claim, and an equal protection claim. The first Volokh regards as an unsupportable “cultural” interpretation (the usual definition of fundamental rights being those rooted in tradition). But his deepest concern is with the second claim:

On the second claim – equal protection – the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the “rigid” three-tiered scrutiny of the federal equal protection cases: “strict scrutiny” for race classifications, “intermediate” scrutiny for sex/gender classifications, and “rational basis” for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a “flexible” test that calls for distinctions between “similarly situated people” to be justified by “a substantial relationship to a legitimate governmental purpose.”

The problem with this argument is that it puts Gays and Lesbians, people whose fundamental identity has been assigned to them by nature, in the same legal category of guys who don’t want to wear motorcycle helmets. It seems to assume that the desire to marry, even the condition of being homosexual, is a matter of choice to be controlled by state interest.

Volokh is not interested here in ghettoizing the gay community. His ultimate goal is to preserve a middle ground, where states are free to experiment with such social policy, without having tentative or provisional steps in that experimental process get cemented into law. The actions of aggressive courts like New Jersey’s, he fears, will have a chilling effect on any legislature in the future that might want to push the social policy envelop a bit. He writes:

Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.
While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions.

In a nutshell, what’s at stake here, Volokh says, is not gay rights but the integrity of the democratic process.

This is not an unreasonable point to make. In fact, the “political process” argument has always been persuasive, on this and other such issues. It’s sometimes argued that the reason abortion rights have long been recognized in Europe is because they were won through the political process rather than by judicial fiat. Democratic politics is not just a tug of war for the heart of the majority; in a more profound sense, it’s the process by which a whole culture works through necessary changes in its system of values.

Moreover, deference to the political process seems to have become a mantra of both right and left. It was the practical effect of Justice Breyer’s book, Active Liberty, and it is the single note of every song Justice Scalia sings in nearly every speech he gives or every opinion he writes.

And it doesn’t necessarily mean that Gays and Lesbians are being left out in the cold. If Andrew Sullivan is right when he claims that the argument for Gay marriage is a fundamentally conservative argument, then the political process may eventually yield a more happily stable result.

What bothers me though is that the overemphasis on democratic process is effectively a repudiation of principle—not of “a” principle, but a repudiation of principle itself. Consider, for example one of Scalia’s favorite arguments for majoritarian process: it starts with the woman’s suffrage example. Back in the day, he says, no one doubted that the only proper vehicle for securing the vote for women was the amendment process. It came when the culture was ready, and no body has seriously challenged it sense. But if suffrage had to be won today, they’d bypass the political process altogether and head straight for the courts. And he’s right, of course. Even third rate lawyers would have an easy time today making first rate arguments that women were equal to men, possessing all the inalienable rights that men enjoy.
Great argument—but why stop there? By these lights, shouldn’t we have voted on the proposition of racial equality? Indeed, in terms of cultural resistance, racial equality has clearly been a harder sell. Maybe if good white people like me had a few more decades to get comfortable with the idea, we wouldn’t mind letting black folk vote.
No, bad argument! Sometimes, democratic principles need to trump democratic practice. And fundamental human equality is one of those principles; and at least in New Jersey, today is one of those times.

It’s a slam-dunk (to use CIA jargon). You’ve got to be an ACLU lawyer or an obese police captain worried about retirement not to get it. Torture ‘til he talks, right?

Well, right. I would anyway.

And given that scenario, I’d probably keep whacking away long after the credits have ended. And so would my 87 year old mom. And so would you. And, truth told, so would that ACLU lawyer. (That’s everybody except obese police captains and they never get it.)

But the question really is, why is this a good rationale for throwing away habeas corpus, legalizing (i.e., institutionalizing) torture, and offering a carte blanche to every brutal dictator on the planet to rewrite the Geneva accords to suit themselves? Why, in other words, is it smart to reshape the law (and pervert fundamental American values) just to be “legally prepared” for such an extraordinary hypothetical?

It isn’t smart. To see why, consider this hypothetical.

Let’s say I’m out camping by the lake. I think I’m alone until I notice you, fishing a few yards away. We strike up a conversation. Suddenly, you drop to the ground, writhing and gasping for air. Now, I don’t have any medical training but I’ve seen enough TV to know how to perform an emergency tracheotomy when I have to.

So, out comes my trusty screwdriver and a few seconds later, presto! You’re breathing. I’ve saved your life. I’m a hero.

Three weeks later, presto again; out comes your lawyer. I’m a respondent in a civil action—you’re suing me for mutilating you. And the laws of decency and gratitude notwithstanding, the laws our (unnamed) state are on your side.

This is a terrible injustice, isn’t it? But how do we fix it?

For those who share the worldview of George Bush, the answer’s a no-brainer: pass legislation that would, 1) authorize well intentioned citizens to perform tracheotomies in situations they perceive to be emergencies, and 2) prohibit the courts from reviewing those “emergency procedures” to determine how proper they really were. Well, change “private citizens” to “CIA interrogators,” “emergency” to “terrorist threat,” and “tracheotomy” to “torture,” and you’ve got the essential logic of the Military Commissions Act. (A WH summary of the act is here, the White House signing statement is here.)

Whether I’m wandering the forest with a screwdriver honing my surgical skills or thrashing some swarthy terrorist in a race against the clock, the law is generally not on my side. We don’t lower the bar to accommodate the violence of reckless do-gooders. This is probably true even if I’ve sized up the emergency correctly. And it’s especially true if I’m wrong (if, say, I’ve poked a hole in somebody having an epileptic seizure or smashed the knuckles of a deaf-mute janitor). We don’t give our spooks a real license to kill. We don’t riddle the Constitution with loopholes.

But, if I am right, what jury of my peers will find against me? None—not in Massachusetts, not in San Francisco. None. And if every fifty or seventy years or so some real life 007 happens to make a little human sausage in the process if actually saving the day we don’t need to revise the Constitution to protect him from our legalistic selves. A little technicality or a strategically “botched” investigation should do the trick.

But of course, as Bush loyalist John Yoo boasts, this is not really about security, terrorism or anything else except executive power—and more precisely, about the willingness of this executive to undermine both the judicial branch and the law itself in order to grab it. Senator Spector seemed to understand this when he predicted that the court would kick it back to the Senate. Apparently, it’s only a matter of time. Let’s hope then it is also about the Supreme Court living up to its honorary title of defenders of the Constitution.

The purpose of this occasional rant is to comment and to instruct on the world of the law and lawyers, and the first problem we need to overcome is the fantasyland that most people envision is the American justice system. Our system is the best in the world: it functions on a huge scale and, generally, functions rather well (yes, there are the occasional aberrations, but, as in all human undertakings – consider even your own family – sometimes events just do not go as expected or required).
One major problem is that most of us (stressing the “you” here, not me) really know little of which we purport to speak.

The fundamental cause of this failure is that most of us receive our understanding (which is much too generous a word for what is meant here) from a very limited number of sources – unfortunate sources, if you will: Court TV, Fox News and CNN (regular television programs and movies are a special case we will get to eventually). Just consider the frenzy this week over the spectacularly phony JonBenet (see, we do not even need last name or place, do we? we’re all so familiar already) confessor. The news has been filled with “facts” (please notice the ironic use of the quotation marks – evidence is ONLY what comes out on a court proceeding – we, as the public, have no evidence yet, even though the television and radio commentators just love to use that inaccurate word) and numerous “experts” (notice the quotes again: always ask yourself what makes these people experts other than the appropriate network saying so – and we’ll examine this phenomenon in the next few postings) have already analyzed possible scenarios that will never be shown (unfortunately, eventually) to be even remotely accurate but which will somehow take their place in the “truth” we perceive and remember.

The key to understanding and then learning (the real message of these postings) is recognizing that these televised events are not news but are entertainment, and the supposed neutral commentators are simply entertainers, as we will discuss in the next post.

Before the final draft of the Constitution was even ratified, debate raged over need to protect individual liberties from government usurpation, as well as the scope of the new federal government’s powers. During this debate, John Jay, Alexander Hamilton, and James Madison authored the Federalist Papers in which Madison declares, “What is government itself but the greatest of all reflection on human nature?” By the assertion of its principle author, the constitution is more than a framework for government. The role of the constitution beyond establishing democratic government is a subject of debate over interpretation. The judicial branch is the center of this incessant debate regarding the fundamental purpose and function of the constitution. On one side, proponents of judicial restraint argue for a rigid, literal reading of the constitution or for deference to the legislature as the “voice of the people.” On the other side, supporters of an active judiciary appeal to thee true purpose and function of the constitution. That purpose and that function are threefold. The constitution is a framework for a representative democracy, a safeguard against the dangers inherent in the same democratic system, and the enshrinement of a philosophy of liberty, initiated by the bill of rights, that is constantly evolving to reflect contemporary zeitgeist.

Too often, the debate over constitutional interpretation focuses on the first function of the constitution, resulting in justification of the doctrine of “Judicial restraint” as opposed to activism. Various theories espouse restraint, but they all ignore fundamental truths about the constitution, namely that its ambiguities require broad interpretation, and that it is a normative document. The Judicial branch, ultimately the Supreme Court, is not simply an auditing division, created to check the actions of the legislature and executive against the test of the articles of the constitution. The Supreme Court must also evaluate all government actions against the normative values enshrined in the Bill of Rights and subsequent amendments. In so doing the court fulfills its primary role as Madison’s “reflection of human nature,” in that it dictates contemporary application of the constitution as a reflection of contemporary ideology and philosophy.

Strict Textualism is advanced as an intellectually unsophisticated challenge to the court’s role as interpreter of the constitution. This theory dictates that the court should act only if government action violates the direct enumeration of the constitution, and is immediately inapplicable because of the ambiguities intentionally included in the constitution. This ambiguity that precludes any textual method of interpretation, allows the constitution to adapt to changing social and cultural standards. As the late Supreme Court justice William Brennan phrased it, “Like every text worth reading, it [the constitution] is not crystalline.”1 If a reference to the text of the constitution would suffice, there would be no need for the incessant debate regarding proper interpretation.
The Majoritarian theory of constitutional interpretation is more nuanced than simple textualism, but remains myopically focused on the constitution’s function in establishing a democratic government. Current Supreme Court justice Antonin Scalia presents the textualist/majoritarian argument in his work A Matter of Interpretation, and in fact, he presents a compelling argument for adhering to text in statutory law. His argument is that in resolving cases of statutory law the judge must look to the text of the law rather than appealing to the intent of the legislation or legislature. In his words, “The Text is law, and it is the text which must be observed” (22). The limited scope of textualism is entirely appropriate when resolving a dispute involving the strictly limited function of statutory law. Through specific statues, the legislature confronts specific legal conundrums, often providing lengthier texts than the constitution to outline specific penalties and definitions. The parallel fails however, when one crosses from statutory law adjudication to constitutional interpretation.
Scalia asserts that if one accepts that courts are bound to rigidly interpret statutory law, then the same standard must “apply a fortiori to a constitution.” Scalia’s arguments hinge on a closed view of the constitution. The bill of rights, to Scalia, is a comprehensive list of liberties protected by the constitution. He rejects the notion of a “living constitution” that adapts to changing social norms, asserting that the codification of the bill of rights is evidence in and of itself of such rejection (40). This argument is subject to two fundamental weaknesses. First, and most importantly, any assertion as to the intention of the framers of the constitution is entirely speculative. It is impossible do definitively determine the mind-set of the nation’s founding fathers. Any theory that appeals to the framer’s intent is truly reflects the ideological and analytical bias of the individual expounding the theory.

Secondly, the appeal to the intent of the framers is a fundamentally flawed measure that emerges in nearly every theory of constitutional interpretation. It logically follows that the courts must consider the intent of the framers of the fourteenth amendment when considering issues of due process. Nearly one hundred years separate the 14th amendment and the original ten, creating a massive disconnect between the intent of the original framers and the author’s of the post Civil War amendments. Upon which “intent” do we focus? The historical guessing game that is “intent” is simply a mask for an unsophisticated bias in constitutional interpretation. It is the ability of the constitution to adapt and reflect the greater philosophy of liberty, or as justice William Brennan put it, “the principle of human dignity,” in contemporary application that underlies its effective governance.

Scalia’s final flaw is the fundamental failure of a majoritarian approach. Scalia argues that the concept of a living constitution is invalid because it often restricts the functioning of democratic government rather than facilitating it. It is the classic argument that, in the case of ambiguity, the judiciary should defer to the democratic process, to the “majority,” to political discourse. This approach reflects modern societies nearly mythical deference to the term “democracy;” in contemporary US culture the word has become synonymous with liberty.

In fact, the constitution is not a carte blanche endorsement of the divine properties of unchecked democracy. Any legitimate theory of interpretation must recognize the constitution as a democratic framework, but must also recognize constitutional restrictions on pure democratic governance. In this vein, Brennan cautions against the majoritarian process, asserting that, “Unabashed enshrinement of majority will would permit the imposition of a social caste system…”(Brennan 26). Tyranny of the majority is every bit as real as the tyranny of an oppressive government, and the constitution was deliberately crafted to shelter the American people from such oppression.

The Judiciary is clearly designated as the guardian against such wanton democracy, and an active and independent judiciary is vitally necessary to preserving constitutional integrity. The lifelong terms dictated by the constitution for federal judges are direct measures of removing those who interpret the law from the majority will that write it. It was Madison himself who championed the judicial branch as the ideal check to majority power, asserting in the seventy-eighth federalist paper that the judiciary controls neither the “sword” nor the “purse” of the government and is therefore the least likely to usurp the people’s liberty.

The role of an active judiciary as a check to democracy is further necessitated by the danger of factionalism within the political branches. Madison recognized the dangers of factionalism in the eighteenth century, and Justice Stephen Breyer quotes Madison in his contemporary work on constitutional interpretation. (Breyer 28-29). The reality of contemporary US politics is that small interests groups wield enormous power in electoral politics. In turn, they claim significant power of both houses of the legislature as well as the executive. One need look no farther than the US trade policy towards Cuba or the bloated subsidy programs for agriculture and steel to witness this influence. With voter turnout hovering around fifty percent in presidential elections (and significantly lower in congressional election) the majority has abdicated their right to participate in the government. Breyer dubs this participatory freedom “Active Liberty.” As he asserts, its protection is a vital function of the constitution, it is part of the constitution establishment of a democratic government. As this first function of government is undermined, the need for a strong judiciary to counter democratic tyranny is doubly required. Tyranny of the majority must be guarded against but the tyranny of factions has lost even the legitimacy of the public will.

The final function of the constitution is intimately linked to the first two. The addition of the Bill of Rights to the constitution as well the subsequent amendments represent the enshrinement of a greater philosophy of liberty. These liberties facilitate the functioning of democratic governance and they serve to safeguard against popular tyranny. Liberty is not constitutionally defined as he product of democracy, rather it is the an independent value, at times in conflict with democracy. William Brennan referred to this greater philosophy of liberty as the principle of “human dignity”. The point of the Bill of rights is not to enumerate specific liberties that are products of democratic process and exclusive and unchangeable except through the same. Rather they are the reflections of principles of liberty, applied to a certain time period. Brennan acknowledges the essential adaptability of the constitution to changing societal realities (27-28).

Such adaptation is readily visible in the application of the first amendment guaranteeing the freedoms of religion and expression. Throughout the 19th century, the courts held that the religious clause of the first amendment prohibited religious persecution, but allowed for the “encouragement” of Christianity (gpoaccess.gov). Subsequent cases haves abandoned this interpretation in favor of a much more absolute separation of church and state. In Abington School District v. Schempp, 374 U.S. 203, 222 (1963). The court established a test to evaluate the religious nature of legislation, declaring that the major purpose of such enactments cannot be either “the advancement or inhibition of religion,” that the same must have a “secular purpose,” and that they must avoid “entanglement of government and religion” (gpoaccess.gov). Clearly, the court’s application of the religious clause has adapted over time. This evolution is not the product of the framer’s intention, nor is it a reflection of majoritarian desires as expressed through representative legislation. It is the product of a changing understanding of liberty that demands renewed application of constitutional guarantees. The movement from a relatively lax separation of Church and State to a much stricter division is a normative evolution. The justices of the 19th and 20th centuries applied the constitution according to an ideal of liberty.

There is little need to superimpose democratic theory in interpreting the constitution. That is not to suggest that democracy is not the key principle of government established by the constitution. It is simply that there is no need to interpret a role for democracy. That role, the first function, is clearly enumerated in the articles of the constitution. Democratic power is firmly vested in the two most powerful branches of government. Majoritarian control of the “sword” and “purse” of the executive and legislature (respectively) is guaranteed. The true role of the judicial branch in interpreting the constitution is to check this majoritarian power. Textualists and Majoritarians dispute this claim; Scalia artfully warns that an active judiciary will politicize he appointment process, thereby politicizing the courts (47). The assertion is artful because it suggests that an active court will author the very imbalance it ostensibly seeks to prevent. It is perplexing proposition, that the judicial branch save itself from political infiltration by abdicated its decision-making responsibility to the political process.

The appointment process may be political, but this is the check upon the courts power. It is the influence of democratic theorists beloved majority. Beyond that influence the court must remain the voice of liberty acting in concert with the voice of democracy. The two terms are not synonyms. The majoritarian voice has its necessary place in the government of the United States. But in deciding how to interpret the constitution one must constantly acknowledge the role of liberty as a greater ideal. It is often expressed democratically, but at other times it must be applied contrary to majority will by an active judicial branch.

Works Cited

William Brennan JR. “The Constitution of the United States: Contemporary ratification.

Stephen Breyer. Active Liberty: Interpreting our Democratic Constitution. Random House Inc.

James Madison. The Federalist Papers No. 78 [online] available at: http://odur.let.rug.nl/~usa/D/1776-1800/federalist/fed78.htm (accessed 2/5/06)

Antonin Scalia. A Matter of Interpretation: Federal Courts & the Law. Princeton University Press: 1997.

US Government Printing Office Access (GPOACCESS). “The Constitution of the United States: First Amendment – Religion and Expression.” [online] available at: http://www.gpoaccess.gov/constitution/html/amdt1.html (accessed 2/3/05)