TO FOLLOW OR NOT TO FOLLOW (THE CONSTITUTION) — THAT IS THE QUESTION

To Follow or Not to Follow (the Constitution) – That is the Question

One of the chief duties of a citizen is to be a nuisance to the government of his state.

Thomas Jefferson

I remember that my first lesson in mathematics given to me by my brother was a disappointment because he said ‘Now we start with axioms.’ And I said, ‘What are they?’ And he said ‘They’re things we’ve got to admit although you can’t prove them.’ So I said, ‘Why should I admit them if you can’t prove them?’ And he said, ‘Well, if you won’t, we can’t go on.’ And I wanted to see how it went on, and so I admitted them.

Bertrand Russell

… And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and at all times…

Cicero

Around 400 BC, Socrates, the famous Greek philosopher asked another philosopher Euthyphro*, (who was posing as his teacher despite being unqualified for the position), what is known as the famous Euthyphro’s dilemma: Was the good loved by the gods because it was good, or was it good because it was loved by the gods? This question left Euthyphro fumbling for an answer and since then, it has challenged thousands of philosophers and theologians who have struggled to resolve this dilemma satisfactorily.

One way forward, as Socrates and Euthyphro decided, was to agree that good things were good for intrinsic reasons, not necessarily because god said so. In other words, speaking the truth, if it was good, was good by itself, not just because god said so. Even if god someday decided that lying was good, that wouldn’t change things.

The problem was this view made god less than what many wanted him to be: a big, all powerful, unlimited… GOD.

The other philosophical view called ‘Voluntarism’ asserted that ‘good’ didn’t have an intrinsic existence; whatever god said was good. While comforting to many religious people, this view had its own bigger problem. As the devout Catholic novelist C S Lewis, the creator of Narnia, remarked: if good is to be defined as what god commands, then the goodness of god himself is emptied of meaning, and the commands of an all-powerful monster would have the same claim on us as those of the good god. And in the words of the philosopher and mathematician Leibniz: this opinion would hardly distinguish god from the devil.

Lewis and Leibniz were right as history shows; it’s very dangerous to leave the concept of good in god’s hands. The downfall of Arabic culture from being a beacon of arts and sciences in early medieval era to god knows what in these times, is a result of that abandonment* – definitely in part, if not in full.

For many enthusiastic believers of democracy living in a democratic country, their constitution occupies the position of a holy book, no less. Both America and India are good examples. In both countries, the constitution’s authors, when they wrote the document, were to many demi-gods if not gods, and still are to some.

Now imagine Socrates and Euthyphro descending on 21st century and raising another Euthyphro’s dilemma about the Indian or American Constitution (which in many ways influenced the Indian constitution). Socrates asks: “Are the principles of the constitution valid because gods thought of them or did gods think of them because they are valid?”

What will Euthyphro say? If Euthyphro sticks to his earlier stand, he would perhaps say that gods (like Jefferson and Washington in case of America, and Ambedkar and Nehru in case of India) put those principals in the constitution because they were valid in the first place; it’s not the other way round.

But what if Euthyphro were a modern democrat? Then he would likely contradict his earlier position and go the second way – that the principles of the constitution are valid not because of any intrinsic value, but because the gods thought of them; in short, they are gods’ axioms. And he will add a rider: but only because the gods were elected, had popular mandate, and therefore had the democratic approval to postulate those axioms.

Unfortunately for the modern democrat Euthyphro, that leads to a problem.

As experts have pointed out time and again, the US constitution, codified post American War of Independence, was a model in the art of compromise*. The most well-known of those compromises was between those who wanted a strong central government and those who wanted stronger states. This led to America’s own version of ‘Bill of Rights’ being appended to the constitution that explicitly safeguarded state and individual rights in case the federal government tried to become autocratic.

But the bigger compromise in my opinion – and a morally charged one unlike the previous compromise – was on the issue of slavery.

Before America became independent, slavery was present everywhere in the country. With the starting of American Revolution, many people, especially in the northern states, began to see slavery for what it was: immoral, inhuman, and incompatible with the principles of freedom and justice they were claiming for themselves. By the time the US constitution came into force, many states in the north had abolished slavery.

However, the same didn’t hold true for the southern states, mainly because they had a very selfish interest in sustaining slavery: the agriculture based economy of the south was dependent largely on slavery.

The Founding Fathers* of US, the men who led the American Revolution and who later had key roles in writing the constitution of the newly formed United States, had mostly negative views about slavery. For example one of them John Jay said that “it is much to be wished that slavery may be abolished… To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.” Even Thomas Jefferson who owned a large number of slaves himself talked of the unhappy influence on the manners of our people produced by the existence of slavery among us.

However, their opposition to slavery didn’t translate into anything fruitful. Influenced by the substantial southern population and in the practical interests of getting all the states to sign the US constitution and form the union, they agreed to introduce clauses in the constitution that implicitly accepted slavery: treating slaves as property of their master, to be caught and returned if they ran away; and worse, making a slave just three-fifth of a human being*. Obviously the grand declaration that all men are created equal didn’t apply to the slave population (and neither to women*).

These make things tricky for any modern democrat. If the principles of the constitution are to be axioms with their validity derived on the basis of sovereignty of the electorate, then as the American experience showed, slavery for a disenfranchised, oppressed minority can have as much moral standing, as much legitimacy, as freedom for the majority. Such an instance of what god says is good philosophy going badly wrong didn’t stop with the slavery clauses of the American constitution; the danger of depending on the wishes of the majority (and other gods) has been illustrated time and again in history.

Believers in democracy may say I am engaging with a strawman – all modern democratic constitutions have certain fundamental principles that are not dependent on what the majority wants. In fact that’s a key duty of an independent judiciary: to make sure that the legislature doesn’t make laws that go against the constitution, deny people basic rights promised by the holy book. The Indian judiciary in a landmark judgment in 1973 held that the legislature cannot even amend the basic structure of the constitution*.

To this, the Indian Parliament disagreed. Four years later, under an enraged Indira Gandhi, it passed the 42nd Amendment Bill that affirmed the right of the legislature to do what it wished with the Indian constitution so long it had the numbers, the Supreme Court be damned. To show that she meant business, Indira Gandhi had earlier promoted Justice Ajit Nath Ray, a dissenter in the 1973 judgment, to the position of the Chief Justice superseding three senior judges, an event unprecedented in Indian legal history.

Though the subsequent Janata Party government annulled some of the amendments of the 42nd Bill, it is still unclear what the Indian Parliament can or cannot do with the constitution. A general agreement within judicial experts is that the legislature can amend but not destroy the basic structure of the constitution. In effect, it can restrict but cannot take away fundamental rights.

The uneasy truce between what some may call true democracy – the majority deciding laws and policies via legislature, irrespective of the views of the minority – and constitutional polity is nowhere reflected more strongly than in the US, or more accurately, in the US Supreme Court.

The country has been a fertile ground for widely divergent views on social and economic issues. Some of those views, especially on social issues, are extreme, yet held by relatively large sections of population. The US is also one of the world’s oldest modern democracies; therefore the views have also kept changing significantly with times.

Since the US constitution is extremely difficult to amend*, only with the help of the judiciary whose role is to interpret the constitution could some of those changing views find expression in law. Be it equality of the races, teaching of modern science, or separation of state and religion, proponents of both sides have relied heavily on the judiciary to interpret the constitution in a way that favors their side in such issue-based fights.

The US Supreme Court, which is the final arbiter of these social and economic battles, has nine justices (including the chief justice) who are nominated by the President of the country and confirmed by the Senate. As is usual, the majority (at least five) of judges have to agree on an opinion before it can become the judgment of the court. So to get an opinion that relies on a liberal interpretation of the constitution, it helps if the majority of the judges have a liberal outlook. The same holds true for a conservative opinion. This has led to frequent battles between the liberal and conservative factions of the American society for ideological domination of the court – each wanting to get maximum judges of its kind on the bench – battles that would be comical if they were not so tragic given that they have the potential to affect millions of human lives in almost arbitrary ways.

The honorable Supreme Court judges hold lifetime tenures once they are appointed: they can’t be removed and leave the bench only when they choose to retire or die (impeachment is a rarity). Thus the battle for court domination effectively translates into which faction can appoint maximum judges of its type to the bench.

Since the mid of the last century, the liberal segment of the US society has been represented predominantly by the Democratic Party; the conservatives have had their views voiced by the Republicans. Therefore the battle for the soul of the highest court of the land is finally fought between the Democrat and the Republican politicians, each party (and its voters) while it is in power hoping that a judge belonging to the opposite camp will retire so they can appoint one of their own in his/her place. What a chilling turn could such a battle take has been illustrated nicely in a fictional way in the John Grisham thriller The Pelican Brief in which an oil tycoon has two environmentally conscious judges murdered so that two conservative judges, likely to favor the oil tycoon’s side in the case, can be appointed in their place by the Republican president.

Coming to the real world, the landmark 1973 case of Roe vs. Wade, dealing with the fiercely contested issue of a woman’s right to abortion, illustrates these battles best. Adjudicated by a predominantly liberal court under the then Chief Justice Warren Burger, the case was decided in the favor of the right to abortion. The verdict is infamous for being badly reasoned, a point accepted by even the judgment’s supporters most of who wish it was argued differently. Yet it has managed to influence US politics powerfully, dividing much of the nation into pro-choice (those who support right to abortion) and pro-life (those who oppose it) camps.

The ruling is an ever hurting thorn in the side of the pro-life camp that has made its mission to get the judgment overturned. Equally determined are their opponents to see that the judgment stands and women have the right to abortion.

The tussle between the two groups has led to a peculiar consequence for the US Supreme Court: the crucial role played by Roe vs. Wade in confirmations to the court. Whether a nominee is likely to overturn Roe vs. Wade or uphold it is a key factor used by the members of the country’s Senate in deciding who should be a Supreme Court judge, so much so that the issue has got a name for itself: the Roe litmus test. One nominee with otherwise great credentials, the legal luminary Robert Bork, failed the Roe litmus test in 1987. Later another nominee, now Justice Clarence Thomas, just made it with a slim margin of 52-48 in 1991.

One can even imagine a farcical scenario in the future when Roe vs Wade is overturned and reaffirmed every twenty – twenty five years as Democrats and Republicans take turns in the US government and legislature, and liberal and conservative judges gain or lose majorities in the Supreme Court. Or one can imagine judges refusing to retire and going to the extent of operating from hospital beds in the fear that someone of opposite ideology will come in their place and overturn or affirm Roe vs Wade as the case may be.

Picture millions of American women being given or denied the right to abortion based on such electoral or individual machinations! I am already getting inspiration for a Catch-22 like novel.

The tussle between the liberal and conservative camps has led to other consequences for the US judiciary that include bitter and sometimes open hostilities between judges from the opposite camps. A well-known case is of the progressively increasing rift between former close friends Chief Justice Warren Burger and Justice Harry Blackmun (the author of Roe vs Wade) as a once conservative Harry Blackmun turned progressively more and more liberal*.

I don’t know whether people in the US see the irony in the above happenings or not. We know that Lady Justice is not blind; she does see, and her eyes are inevitably colored by the ideology implicit in the constitution of the country. But it is difficult to swallow that even the scales of her balance are not even, and tilt one way or the other based on the party the citizens have voted in the current election!

Let’s take a girl from US, say Juno from the state of Texas, who wants an abortion.

Before Roe vs Wade was decided in the year 1973, Juno couldn’t have abortion in many states of the country while she could have it in some other states with certain restrictions. Which in itself is an incomprehensible state of affairs – how can the solution to a problem that is so universal and affects the life of a person so deeply be decided differently by different states? Are women from Texas so different from women in New York; do they have a different set of rights? In fact, such a universal problem, in commonsensical circumstances, should have similar solution across nations, forget states.

Anyway, let’s come back to Juno and put her in a hypothetical situation. It’s the year 2014. And just a day before Juno wants to have an abortion, the US Supreme Court overturns Roe vs Wade making it illegal for Juno to have an abortion in her state of Texas. What should Juno do?

The simplest answer is of course Juno can’t and shouldn’t do anything. Abortion is wrong – god says so, god meaning the legislature of Texas since Juno lives in a federal democracy. So she should accept god’s axiom and move on.

But Juno is not the one to give up so easily. Besides being unwed and pregnant, she is a young, amateur philosopher of sorts and a modern disciple of Socrates. Like Socrates she believes that god has no business defining what is ‘good’, no business giving us moral axioms. She believes that ‘good’ is independent of god; and all god can and should do is love what is ‘good’ and manage the world according to it – a ‘good’ that exists apriori and can be arrived at only through reason.

Moreover besides Socrates, Juno is a fan of Thomas Jefferson, and like him, believes that one of the chief duties of a female citizen is to be a nuisance to the government of her state.

There also exists a third historical person whom Juno doesn’t know very well, just a little bit, but whom she is going to follow nevertheless. He’s the dude who showed to the world that the British Empire had hardly any clothes: Mr. Gandhi. Juno is a fan of Gandhi because he seems to be a devoted disciple of Jefferson; few people in the world have been a greater, constant nuisance to the government of their states over their lifetime. And what she definitely knows about the man is that when the British Government had a law forbidding ordinary Indians to make salt without paying a prohibitive tax, a law that Gandhi thought was unprincipled and unjust, he stood up, said “sez who?” to the British imperialists, and promptly marched to break the law.

Juno intends to do the same, say her own “sez who?” to the Texas legislature as she thinks that the Texas law prohibiting abortion is unprincipled and unjust; the Texas legislature has no right to prohibit abortion. When she is told by the Supreme Court that it’s the US constitution that gives the Texas legislature that right, and how can’t she possibly follow the US constitution, she says “sez who?” once more, this time to the Supreme Court.

Juno is then asked why is she being so stubborn and running the risk of being hauled off to jail. In reply, she poses two questions of her own.

Her first question is: Does the constitution really mean what it means when what the Supreme Court says it means is not something constant, even in a broad way, but depends upon the whims and fancies of the voters, the lawmakers and the judges, all of them pulling in different directions and ultimately coming together in a royal hotchpotch? Why should she submit one of the most important decisions of her life in the hands of such a mess?

Her second question is more fundamental: Why should she submit to the constitution itself, to its axioms? How does she know a document that permitted slavery until it was amended after a civil war is not similarly unjust when it comes to her rights? To put it differently, what makes the constitution’s principles in Socrates’ words ‘good’?

Many people including her parents try to persuade Juno to let go of her battle, but Juno is one resolute girl; she refuses to budge from her stand. As she is about to be arrested…

We don’t know what will happen to Juno yet. But I think we should fight for her; anyone who ardently believes in something and is willing to stand her ground in defending her cause, especially non-violently, deserves to be heard.

Which in effect means that we have a case to argue on behalf of Juno, the case called Juno vs the US constitution. Though prima facie it deals with abortion, it is about something much more basic: under what circumstances should Juno willingly submit to the US constitution and its interpretation by the Supreme Court? And under what circumstances she shouldn’t?

Soon we realize that itself is part of a broader question – under what circumstances should a citizen willingly submit to their constitution, any constitution, and its interpretation by the branches of the government? And conversely, under what circumstances they are right in refusing to submit to it?

Like the issue of abortion, the question we face is a universal question. The answer to it is not likely to differ from state to state or country to country.

(To Be Continued)