The Court v. Common Sense

Not quite twenty years go, a lawyer named Philip Howard wrote a book called “The Death of Common Sense.” His thesis was that government bureaucracy produces so many laws and attendant regulations so absurd as to stifle innovation and productivity, and by failing even the most cursory application of common sense, is counterproductive in pursuing their impossible goal of mandating minute details of behavior, although ostensibly for the public good. In trying to anticipate, account for, and adjust the activities of individuals and institutions to achieve a predetermined social, political or economic goal, much legislation has, according to Howard, totally abandoned common sense as a guideline governing what should or should not be encouraged, permitted or outlawed.

When looking at such government endeavors as he examines, it is hard to disagree with his premise. The U.S. federal tax code and a wide variety of the Occupational Safety and Health Administration (OSHA) regulations are just two living examples. And when applying his criteria to the current deliberations and decisions of today’s U.S. Supreme Court, the death of common sense is alive and kicking as its virtual everyday motto.

One ongoing attack on common sense by this Court is the so-called “originalist” theory of constitutional interpretation whose application defies any notion of rationality. It is incomprehensible to believe, as Justice Scalia and his judicial doppelganger, Justice Thomas have advocated, that the Founding Fathers intended the Constitution to be interpreted primarily according to the knowledge, beliefs, and values of men (absent women and any other people not Caucasian, predominantly Protestant, wealthy, and of European descent) living in the eighteenth century. The fact that the Constitution itself provides for amendments suggests the Founders understood the absurdity of allowing them eternal guidance from their graves, which would have perpetuated slavery and the denial of a woman’s right to vote, among other quaint policies of our revolutionary leaders.

The idea that corporations are people entitled to the same constitutional protections as individuals — the basis for the Court’s ridiculous decision in the Citizens United case that has trampled on the long established will of Congress and previous Court precedents, unleashing unrestricted and anonymous corporate wealth in political campaigns — is just one recent example of common sense strangled at the hands of Chief Justice Roberts and his four henchmen (Justices Kennedy, Scalia, Thomas, and Alito) of the right wing apocalypse — an alliance of reactionary Republicanism that threatens to turn the Court into a political arm of the radical right.

The recent reversal of the Chief Justice’s apparent intent to side with his gang of four in striking down the Affordable Health Care mandate for universal healthcare insurance was far more a political panic attack than an act of common sense, as he saw his legacy developing as the leader of a Court that has in almost every major decision become an adjunct of a Republican Party that by its own admission is out of touch with the majority of Americans. And while I did in fact predict his eventual vote, I did not envision the Chief Justice’s contortions of legal logic that enabled him to agree with his Republican-appointed cohorts that the mandate was unconstitutional as a matter of interstate commerce but acceptable as a right of Congress to enact taxes. In fact, he was wrong on both counts. Virtually all Court observers believe that according to prior cases, the mandate was clearly sanctioned by the precepts of interstate commerce. And by any reasonable definition, it does not levy a tax but rather offers the choice to be insured or pay a fine if you’d rather not. (The unintended consequence of the Chief Justice’s mangled logic is to prove that at least in this case, two wrongs do indeed make a right.)

And now, we are about to witness two more major flights from common sense that have become the hallmark of the Roberts Court. In a flurry of legal mumbo-jumbo, the Court is desperately trying to avoid a decision on whether California’s popular vote against same-sex marriage violates the constitutional rights of gays and lesbians, as lower courts have ruled. Instead of enjoining the issue, the Court spent most of its oral argument time on whether the lawyers arguing the case had “standing” to debate the question at all. If, as they seem to prefer, the Court can conclude there is no “standing”, then they don’t have to worry about the extent to which homosexuals are, or are not, protected by the Constitution, which common sense suggests should be their job. And when the Chief Justice this time inanely suggests that same-sex marriage is a nonissue because marriage is just a “label,” common sense is left for dead.

Obviously, it is far more than a “label” because the other case — the constitutionality of the federal Defense of Marriage Act (DOMA) — centers on defining marriage as only between a man and a woman and denying same-sex couples the federal legal benefits of marriage. Here again, the Chief Justice leaves common sense in the dust when stating that the president lacks “the courage of his convictions” and should defy the law by refusing to enforce DOMA since he doesn’t believe in it. It is beyond belief that the Chief Justice of the U.S. Supreme Court would suggest that the president should decide which laws to enforce, or not. And here again, the Court will likely dodge the issue of whether same-sex couples have a Constitutional right to marry by ruling that DOMA illegally denies benefits of marriage in those few states that have legalized such marriages, not because it is morally wrong but because Congress indeed has no right to supersede a state’s judgment that same-sex marriage is legal.

However, the Supreme Court does have the right — in fact the obligation — to override any state law that prohibits an American from enjoying his or her constitutional rights as a citizen. The central issue, which the court flouts common sense by desperately trying to avoid in both cases, is not whether same-sex marriage is morally acceptable, or whether or not God forbids it, or whether it is good or bad for children, or anything other than whether denying marriage and all its legal benefits to gays and lesbians violates their constitutional rights. While the Constitution clearly leaves issues of marriage to the states to decide and administer, the Court needs to rule on whether or not that rightfully includes a state’s prerogative to prohibit same-sex marriage. I believe it is a common sense conclusion that if homosexuality is not illegal (and not even this Supreme Court could avoid that conclusion), then neither should a marriage between homosexuals be illegal.

I am not suggesting that there are no legal restraints on our basic rights and legal activities. Even our precious freedom of speech is sometimes rightfully limited. Smoking and drinking are legal, yet so should be the many circumstances when they are not permitted. But unlike yelling “fire” in a crowded theater, smoking and drinking, homosexuality harms neither the participants nor anyone else. Denying same-sex couples their liberty and pursuit of happiness (which I recall reading somewhere are unalienable rights endowed by their Creator) through marriage seems — in the century in which we are living — unjustifiably and blatantly discriminatory, and therefore unconstitutional.

To me, that’s common sense, which if not already dead at the hands of this Court, is certainly moribund.

Leave a Reply

Your email address will not be published. Required fields are marked *