No matter whether th’ Constitution follows th’ flag or not, th’ Supreme Court follows th’ election returns.
—Finley Peter Dunne, American humorist (1867–1936)
I write to you as a friend of the Court. I sympathize with you. I feel your plight.
Of all the jobs in our three branches of government, yours is the toughest because your job is to interpret the Constitution. A Constitution that was cobbled together by many hands (to form a more perfect union) out of political expediency, compromise, and self-interest—a Constitution elusive, complex, contradictory, and even at times, God help us, unconstitutional.
No wonder you’re in over your heads. And I mean that in the nicest way.
I blame the Constitution. Look what you’re up against: a dense, 4,400-word document of laws written in the eighteenth century that you believe were meant to govern this nation for all time.
Then there’s the language. That pesky Commerce Clause. The broad generalities of the Preamble: “. . . to insure Domestic Tranquility . . . promote the general Welfare and secure the Blessings of Liberty.” And all those mysteries lurking beneath Congress’s power to make “all laws which shall be necessary and proper.”
And let’s not forget those Latinate constructions, the obscure gerunds and dangling participles. Why, to misread even one semicolon and—oops—there goes another black defendant on to death row in Oklahoma.
And if the Constitution proper is no piece of cake, it sure doesn’t get easier with the Bill of Rights.
I mean, what the hell is “due process”? How fast is a “speedy trial”? And what’s “excessive” when it says “excessive bail shall not be required”?
It’s enough to make your heads spin.
But it’s not like you weren’t warned—and by your favorite Framer, James Madison. Who said—as I’m sure you remember—that when Congress inserted the Bill of Rights at the end of the Constitution and not, as he intended, in the body of the Constitution itself, there’d be hell to pay. As he put it in a letter to Alexander White, fellow Congressman from Virginia, by adding the ten Amendments to the Constitution as an additional supplement, “it is already apparent I think that some ambiguities [my emphasis] will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superseded, by the supplemental act.”
I repeat: “Some ambiguities will be produced.”
Of course, as Supreme Court Justices, you cannot admit to any “ambiguities.” Every day you must get up, slip into your black robes, and go to work pretending you know exactly what you’re talking about.
I understand your problem. Believe me. The nation’s fate is in your hands, and the last thing you can do is look confused. Not to look confused has to be one of the first things you’re taught in law school, right after how to open and manage an escrow account.
Now, I know that there is not one of you who has ever awakened in a cold sweat from a deep sleep, screaming: “Holy shit! This Constitution is a bitch.” But nonetheless, I can’t help but notice a sense of your own self-doubt.
How else to explain all those gizmos, gimmicks, and “tricks of the trade” you call “methodologies” for interpreting the Constitution? You know what I’m talking about: those “tools” you’ve come up with to explain your decisions. You’ve got your strict constructionists. You’ve got your “Originalism.” You’ve got your “Original Intent.” And the hot one at the moment—“the Framers’ Intent.”
That last tool is, I believe, where you have to figure out what the Framers were thinking when they wrote the Constitution. So I look forward to your opinions regarding those transgender bathroom laws in which transgenders have to use the bathroom corresponding to the sex on their birth certificates. Considering that the Framers didn’t have bathrooms, powdered their hair, and dressed up in what looked like women’s clothing—that case will not be so easy.
I’ve even heard tell that one of you (who will remain nameless) is so enamored with the Framers’ Intent, he sends his clerks scurrying to the library looking for eighteenth-century dictionaries so he can look up the words keep, bear, and arms when deciding cases regarding the Second Amendment. And isn’t it curious how these definitions always line up exactly with the mission statement from the NRA?
(By the way, these clever little devices of yours can’t help but remind me of those decoder rings I got as a boy for a Wheaties boxtop: turn the dial and a secret message will appear!)
When any of the above “tools” don’t quite work, you’ve still got plenty more where they came from. You’ve got your “Let’s find out what everyone was thinking before the Constitution was written.” “Let’s find out what everyone was thinking when the Constitution was written.” “Let’s find out what everyone was thinking one hundred years after the Constitution was written.” There’s also your precedent, historical context, common law, and natural law. You guys have more choices than the Bachelorette.I
One of you (who will remain nameless, but Chief Justice Roberts knows who he is) uses a somewhat different method. He describes his process as much like that of an umpire, crouching behind the plate, merely calling balls and strikes as opposing lawyers hurl their arguments at him.
At first, this sounds like disingenuous drivel. Then, after thinking about it, the metaphor made perfect sense: the Supreme Court and baseball are much alike. Nine players on a team. Nine Supreme Court Justices. All in uniform. All sitting on a bench. Players work their way up to the majors from lower leagues. Justices from lower courts. The one distinction, however, between umpires and Supreme Court Justices is their impartiality. An umpire doesn’t care who wins. But in the case of Citizens United (where corporations became people), was there ever any doubt that Umpire Roberts would dare rule against the very people who gave him his job?
• • •
Which brings me to my main point: Since you guys switch your “tools” as the occasion arises, it might appear (as it does to me) that what you’re really doing is deciding the outcome first and then picking your reasons to justify it.
How else can you explain what seem like random, often unsubstantiated, and idiosyncratic rulings?
Let me provide some examples. And while they may be from your predecessors, nothing—as we shall see—has changed:
In 2005, the Supreme Court decided by a 5–4 vote that the display of the Ten Commandments on the grounds of the Texas state capitol did not violate the separation of church and state and was, in fact, constitutional.
However, on the same day—June 27, 2005—within the hour of that last ruling, the very same Court decided (also by 5–4) that the display of the Ten Commandments at the Kentucky state courthouse violated the First Amendment’s requirement of separation between church and state and was, indeed, unconstitutional. Same Court. Same day. Same Constitution.
A similar puzzlement can be found in an earlier Court’s ruling that involved the Jevovah’s Witnesses. In this 1940 case—Minersville School District v. Gobitis—the Jehovah’s Witnesses challenged the right of a public school to force its students to salute the American flag. In his Majority opinion, the so-called great Justice Felix Frankfurter ruled against the Jehovah’s Witnesses, holding that “the flag is the symbol of the nation’s power, the emblem of freedom in its truest best sense.”
Apparently, Judge Frankfurter missed the irony in his description of the flag as an “emblem of freedom” while at the same time compelling elementary students to salute it or face expulsion.
But then, only three years later the Supreme Court changed its mind, and in West Virginia State Board of Education v. Barnette (an almost identical case) ruled in favor of the Jehovah’s Witnesses, stating that their refusal to salute the flag was because of their sincerely held religious beliefs. And not, as the Court had previously decided, out of a lack of patriotism.
Same case. Same Jehovah’s Witnesses. Same Constitution.
• • •
To press my case further, I draw your attention to the “free speech” case of McIntyre v. Ohio Elections Commission (1995). I like this case because I believe it demonstrates the Court’s bewildering and tortured logic in trying to justify already-held opinions.
In a nutshell: taxpayer Margaret McIntyre distributed leaflets protesting a proposed tax outside a school board meeting. She was fined $100 on the grounds that the pamphlets were unsigned and therefore anonymous, which was against the law in Ohio.
Ms. McIntyre appealed the fine all the way to the Supreme Court, then headed by Chief Justice William Rehnquist. By a 6–2 vote, the Court declared that the Ohio law was unconstitutional. Anonymous free speech (or a leaflet in this case) is protected under the First Amendment. So the Court, it would seem, got it right. But the story does not end there. At least not for me. Because when we examine how it was decided, this case becomes, well, curious.
The majority of Justices (Sandra Day O’Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) made the argument that since great works of literature had been published anonymously, not to protect such material would be detrimental to mankind. As examples, they list the great writers who published anonymously: Voltaire, George Eliot, Mark Twain, and Shakespeare.
One problem: none of them ever published anonymously.
The Victorian novelist George Eliot was really Mary Anne Evans. She chose a man’s name for a variety of reasons (one was sexism). But after the publication of her first novel, George/Mary Anne quickly revealed her identity. After that, everyone in England (at least) knew that George Eliot was actually Mary Anne Evans.
Voltaire’s real name was François-Marie Arouet. In 1718, after being released from prison, he took the name Voltaire, reversing the syllables of his family’s hometown. And he took the name because, as explained to one and all, he was unhappy with his real name, which sounded too much like that of an inferior poet of the day.
Nothing he ever wrote under the name Voltaire was published anonymously. Voltaire was his nom de plume! For Chrissakes.
Early in his career, Samuel Clemens began writing under the name of Mark Twain, as every schoolchild knows. Clemens never wrote anonymously! Everyone in America—everyone in the world—knew that Mark Twain and Samuel Clemens were the same person.
As for Shakespeare: there are those conspiracy theorists who claim that Shakespeare’s plays were really written by the Earl of Oxford, Lord Bacon, or even Queen Elizabeth. In which case, they would have been writing anonymously. But Shakespeare—the one from Stratford-upon-Avon—the one with the earring—that Shakespeare—the real Shakespeare—never used any other name.
In 1623, the title of his collected plays was William Shakespeare’s Comedies, Histories, and Tragedies. And there was even a picture of the man on the cover!
That the majority of the Supreme Court seems to have understood none of this makes me wonder what else they know nothing about.
Now, back to McIntyre v. Ohio: Justice Clarence Thomas agreed with the outcome of the Majority but strongly took issue with the means of getting there. So he wrote his own opinion. Chastising the Majority for its failure to consult American history, Thomas argued that he could not join their opinion because “It deviates from our settled approach to interpreting the Constitution and because it imposes its modern theories concerning expression upon the Constitutional text.”
As a member of the Original Intent Club, Thomas wanted to know whether the Framers believed in anonymous speech sufficiently enough to “deserve the protection of the Bill of Rights.”
Since the subject of “anonymous pamphlets” never came up during the Congressional or Ratification debates, Thomas has to go backward to the Revolutionary Era to find what he’s looking for.
And there he discovers political tracts written under the anonymous names of Cato, Brutus, etc. He also comes up with one of the most famous cases in the history of American “free speech”: the trial of the publisher John Peter Zenger, a true patriot, who in 1734 was arrested for refusing to divulge the names of anonymous writers (all British subjects) critical of the English occupation.
In this, at least, as an Originalist, Thomas is consistent. But what about the revered Justice Antonin Scalia, the foremost Originalist of our time? Surely, he’d have to agree with Thomas.
But Scalia, as you already know, dissented, holding that Ms. McIntyre had no constitutional right to hand out her anonymous pamphlets. Along with Chief Justice Rehnquist, Scalia sided with Ohio.
To everyone’s surprise, Scalia abandoned his good buddy Thomas. More important, he abandoned the Founders and didn’t even consider the Framers. Instead, he made this argument: laws forbidding anonymous speech (or written material) existed in forty-nine states. To overturn them would be—in Scalia’s eyes—to go against the “widespread and long-accepted practices of the American people.”
This from the Justice who a few years earlier concurred with the Majority in Texas v. Johnson (1989), which stated that the First Amendment protected Mr. Johnson’s right to burn the American flag!—even though all fifty states had laws against doing so.
And what an odd time, in a First Amendment case, for this self-proclaimed Originalist, this Right-Wing defender of American liberties, to be more worried about overturning a state law of Ohio than protecting the free speech of one of its citizens.
Justice Scalia would later claim (in Citizens United v. Federal Election Commission) that the right to spend vast amounts of anonymous money to win an election was guaranteed under the First Amendment. But Ms. McIntyre—with her antitax pamphlets—was not entitled to the same rights. And what could be more American than that: protesting what she thought was an unfair tax?
Summing up: we have the Majority who ignored the Framers and instead believed that the “value” of the anonymous writings by such giants as Mark Twain, Voltaire, and Shakespeare makes such material, like Ms. McIntyre’s, protected by the First Amendment.
Then we have Justice Thomas, who sees Ms. McIntyre’s rights protected because the Framers (remembering Zenger, Cato, and Brutus) would have agreed.
And then there’s Justice Scalia (and Justice Rehnquist), who considered the Framers and the Founders irrelevant, arguing that anonymous speech is unconstitutional because that has been the “long-accepted practice of the American people.”
• • •
I am only sorry I was not there in your offices the day you discussed McIntyre v. Ohio. You know, that room you go to when talking about a case, right before you send your clerks off to write your opinions for you.
I would’ve said something like this:
To Justice Clarence Thomas: Why in the world would you have to rely on pre-Constitutional history when the only argument you needed was The Federalist, written anonymously (to defend the Constitution) by two of its more important Framers—Alexander Hamilton and James Madison—under the pseudonym of Publicus?!II What more proof of the “Framers’ Intent” than Madison, who practically put the Bill of Rights together by himself? And it’s not as if Hamilton and Madison stopped writing anonymous tracts after The Federalist. In 1793, Hamilton wrote a series of magazine essays under the name of Pacificus that were in turn answered by Madison (no longer an ally) under the name Helvidius. Did you really think our beloved Founders had acted unconstitutionally?
To Justice Scalia: How could you—the Grand Poobah of Originalism—so conveniently ignore the most famous anonymous tract in American history? I’m talking about Common Sense, written in January 1776 by Founding Father Thomas Paine under the pseudonym “an Englishman” and described by Christopher Hitchens, among others, as the “catalyst that altered the course of history.”
The pamphlet—like nothing that had been written before or since, for that matter—sold more than 150,000III copies in the first month. Paine’s treatise inspired the Declaration of Independence, which followed it by a few months. George Washington ordered it to be read aloud to his despairing troops before the Battle of Trenton. If ever there was precedent for protected, anonymous speech, it is Paine’s Common Sense, a rousing, poetical call to arms on behalf of freedom, liberty, and the inalienable rights of man.
According to George Washington, there would have been no American Revolution without Paine’s anonymous tract. Yet it seems to have escaped your memory.IV
You who parse every word of our Founding Fathers like an Etruscan priest reading the entrails of a sacrificial animal? You—the Be-All and End-All of that divination known as Originalism? What happened to Originalism when you chose Ohio over Ms. McIntyre? Just one more “tool” to discard when it suited you?
And to the Majority: Why would you mistakenly call on the “values” of Shakespeare, Voltaire, and Mark Twain to make your case when there is the Bible. Yes, incredibly—you forgot the Bible! That sacred yet anonymous text believed in and worshiped by billions across the world for centuries.
I’m not just talking about the Old Testament and the anonymity of Genesis, Proverbs, Psalms, and Ecclesiastes. I’m also talking about the New Testament and the Four Gospels—written by unknown writers who made it clear that theirs was the Gospel according to Matthew, Mark, Luke, and John.
Perhaps you might want to consider that anonymous Book when deciding future cases. For example:
When ruling on the constitutionality of capital punishment:
“Let any one of you who is without sin be the first to throw a stone.”
In cases of separation between church and state:
“Render therefore unto Caesar the things which are Caesar’s and unto God the things that are God’s.”
In cases of unlimited campaign contributions by global corporations:
“It is easier for a camel to go through the eye of a needle than for someone who is rich to enter the Kingdom of God.”
In cases regarding universal health care:
“It is not the healthy who need a doctor but the sick.”
Then as a general note, I would remind all of you:
“Blessed are the merciful for they will be shown mercy.”
Next time you go hunting for your citations, try Jesus. You could do worse. And have.
—Thespian
I. And let’s not forget your other devices: federalism, structuralism, “Fair Reading,” and that good old standby, creeping Catholicism.
II. Yeah, I know. I forgot John Jay.
III. While some historians are skeptical about this figure, it still sold a helluva lot of copies.
IV. You also forgot (or never knew) that Abraham Lincoln, as a politician in Illinois, wrote anonymous editorials denouncing his opponents.