We the People

As we approach President Obama's next Supreme Court justice pick (likely to be announced tomorrow, according to some sources), I think it's important to consider one of the key phrases of the Constitution that separates conservatives and liberals, and sometimes Republicans and Democrats: we the people.

The phrase "We the people" is in the preamble to the Constitution. So it's never been subject to any real litigation. But conservatives and liberals have very different ideas of who "the people" are. These different definitions explain many differences in the conservative and the liberal mindset.

To the liberal, the people means the people who are alive today. The current populace. The petitioner before the court in front of you. Protecting the people means keeping unemployment low and making sure that every American gets health care and a fair shot. It means understanding, feeling and alleviating the pain of the citizens of our country.

But the phrase "the people" can also mean something more akin to "the nation." As in, "I come from a people who are well accustomed to X" or "we are a tolerant people." In the past, conservatives saw themselves as stewards of a people -- not just today's citizens, but those who came before and those who will be around tomorrow. Traditionally, when liberals wanted to spend to alleviate the current real pain of the people, conservatives wanted to balance the budget, to alleviate the pain of generations to come. Conservatives were loathe to change ancient traditions, realizing that they were given to us, as a people, and that to change these traditions would change us as a people, even if the changes seemed to make sense in the present. Conservatives were traditionally the party opposed to international wars, understanding that while a threat can seem urgent today, war generally does not solve long-term problems, and can lead to the kinds of actions, such as torture, that (arguably) protect the people today but harm "the people" in the future, and disgrace "the people" of the past.

Conservatives were the grandparents, those who didn't give in to every current whim, fear or emotion, but who had an eye on the longer game -- the consequences that we couldn't see immediately. They were the ones who understood why something like the electoral college, which just seems silly if we take a quick look at it, might be a key component in making sure that varied states of varied size are able to remain unified. They wanted restrictions on graft and corruption, which angered those who saw occassional bribery as the fastest route to the desired solution. Conservatives were frustrating, because sometimes taking the long view really does ignore present pain, but they had a clear idea of their role -- temporary trustees of a beautiful, old, valued society.

In the lead up to Obama's Supreme Court pick, there has been a lot of emphasis on Obama's desire for justice who exhibit empathy and common sense. This posting by Stanley Fish in the New York Times today does an excellent job of describing the debate over empathy's role in a Supreme Court justice's rulings. Of Obama's style, he writes:

An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

What this means is that Obama, unsurprisingly, wants a pick who will understand the liberal view of "the people" -- the people who are in the court suffering, who don't have the time or the ability to worry about what kind of precedent we are setting fifty years down the line, or why limiting the scope of the federal government -- when the federal government seems like the only institution that can help -- is an important goal. He wants the Supreme Court to be the last hope of an individual who has been beaten down by society and shut out of the American Dream. The conservative, on the other hand, sees the Supreme Court as the last hope of a carefully constructed societal order that might be overrun by temporary fads, mobs, crises, or programmatic needs. As Fish writes,

[Empathy] may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent.

The debate over whether law is an extension of politics is the debate over who "the people" are. Should the law be seen as a sort of ancient, slowly evolving national treasure, or should it be seen as the expression of today's democratic will?

Now, at this point in 2009, the Democrats have managed to exemplify both definitions of the people. They are both more caring and empathetic and they seem more interested in being stewards of "the people" as a whole. They understand the long-term problems involved with occupying foreign countries, ignoring global warming and torturing suspected terrorists. And because of Bill Clinton's excellent fiscal stewardship, they are now even associated with balanced budgets and fiscal responsibility (we will see how long this latter association lasts).

If the Republicans are to become a majority party any time in the near future, they need to get back to their traditional role as the protectors of past traditions and responsible stewards for future generations. This Supreme Court nomination battle would be as good a time as any for the Republicans to begin to reclaim their traditional role. While I am a Democrat, I believe that we need two sides in this great debate, and caricatures of each side as beholden to special interest lobbies ignores the fact that good, reasonable lawmakers on each side of the aisle might simply have a different definition of "the people."