Somehow I thought the purpose of the Supreme Court was to decide if the laws concocted by our law concoctors are constitutional. Maybe it was the inadequacy of my small town public schooling. Maybe I'd watched too many old pompous black-and-white movies about old pompous men in pompous robes. I pictured these nine wise and wizened men (and now women) reading a new law, consulting their well-thumbed copies of the Constitution and then giving the law thumbs up or thumbs down.
If that's not what they do, what do they do?
First, a disclaimer. I'm not a professional court watcher, not a PhD candidate in Constitutional Legal Theory, not a Distinguished Visiting Professor of Postmodern Retro Neo Paleo Studies at Wazupwit U. I'm just a simple libertarian with a simple rule of thumb: if a law means more individual freedom or less government intrusion it's a good law. If not, bad law.
So, on what philosophical hypothesis does our highest court thumb its ride? Apparently, none.
Consider some of their recent decisions. By a 5-4 score the Black Robes decided it's okay for any thumb-up-his-ass county constable to slap thumb cuffs on Soccer Mom and haul her off to the hoosegow for seatbelt violations. So sez they in Atwater v. Lago Vista. Now it can happen to us all. Did the O Wise Ones think they'd stuck their thumbs in the judicial pie and pulled out a plum? Didn't they consult the Fourth Amendment concerning "unreasonable searches and seizures," carefully noting the words "unreasonable" and "seizures?"
If they didn't base their ruling on the Constitution what were they reading, Tom Thumb? Thumbelina? Respect for "the law" is at an all-time low. The FBI kills innocent people at Ruby Ridge and Waco, can't find a spy in their own house and fumbles crate-loads of Timothy McVeigh files. The LA cop shop is scandal-ridden with perjury, framing, brutality and curbside executions. People in Cincinnati and NYC riot and demonstrate against recurrent police shootings of unarmed citizens. Eight cops in San Antonio get pinched for protecting illegal drug shipments. So the Robed Ones, their thumbs firmly on the pulse of the community, decide the police should have even more power.
Here's another thumbnail sketch. In an 8-0 rout The Supremes nixed any medical exception to the government's War on Marijuana. Why? Because the Controlled Substances Act allows none. Is the Controlled Substances Act constitutional? Did The Framers want our law concoctors dictating what we can put into our own mouths, be it to smoke pot, sip herbal tea or suck our thumbs? Does this ruling result in more individual freedom, or does it squash us even flatter beneath the government's thumb?
Are these judicial giants wrestling with weighty questions of Constitutional law or just thumb wrestling? At a time when more people than ever are convinced that the drug war is utterly insane our ultimate arbiters decide to turn the thumbscrews even tighter.
Not to be outdone, the minor league Golden State Supremes recently dismissed the historic doctrine of jury nullification, proclaiming that jurors have no right to consult their consciences while deliberating. Without their consciences jurors are about as useful as thumbtacks on a brick wall. They're just rubber stamps for the government's politically motivated conviction factories.
Are these judges sowing the seeds of justice or do they simply possess green thumbs for growing more power for the state? At a time when America's prison system is sardine-packed with people convicted of victimless, mostly minor drug-related, crimes, the California High Court wants to guarantee their prosecutor's conviction rates by pressing their thumbs on the scales of justice.
These three rulings have one thing in common: the already powerful are made even more powerful. They thumb their noses at the idea of protecting the individual's rights from the ever-expanding dominance of government. Instead of returning to the source -- the Constitution -- these adjudicators simply look at the current law and proclaim, "Since it's the law today, it should be the law tomorrow. Never mind how we got here."
So what can libertarians do? For starters, we do what freedom-lovers have always done. Civil disobedience. People helped slaves escape to freedom in spite of the fugitive slave laws. Jurors refuse to convict defendants who break stupid laws. Witnesses turn deaf and dumb when cops come looking for violators of victimless crimes.
We shouldn't play nice with them until they learn to play nice with us. In other words, we tell our self-proclaimed betters to go hang by their thumbs.
Garry is a prolific writer and many more of his works may be found at:
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