An unconstrained conservative judiciary causes extinction.

We realize that more perfect union necessarily has many more meanings, discovered and still undiscovered, for us today. The words express the hope that 50 states covering an abundant swath of planet earth’s surface can cooperate. There is of course nothing simple about the challenge of cooperation between the governments of 50 states and the federal government. But this is part of what the endless work of forming a more perfect union entails. Today, more perfect union involves whether states can cooperate with each other and with the federal government over the biggest problems of our times, including a pandemic, economic crisis, public health, social justice, climate change, gun violence, terrorism at home and abroad, immigration and a long list of other pressing issues for humanity and our life on earth.

In July, 2020, protestors and local officials in Portland, Chicago, Seattle, Washington, D.C., Albuquerque, N.M., Louisville, Ky., Kansas City, Mo. and other American cities decried the Trump Administration’s use of federal force in cities dealing with protests and violence in the wake of the police killing of George Floyd. In the disorienting summer of 2020, amid pandemic, recession, racial tension, protest, violence, and heated calls for police reform, the stressors on federalism are manifold. The Preamble’s more perfect union is a dream in the sense that Martin Luther King, Jr. had a dream. It uses poetic-sounding language to express the unavoidable interdependency between We the People and their constituted governments, state, local and federal. It is a dream based on the hard stuff of interdependency in a world where one person’s plastic ends up on another person’s shore. Or where an individual’s infection ends up infecting a community. Abraham Lincoln used the famous house divided, biblical metaphor to express what’s at stake in our dream of union: “A house divided against itself cannot stand.” For the Preamble, for Lincoln and for us today, the hard work of cooperation, of getting along with each other, of working together, of sacrificing some self-interest is a practical necessity if the republic is to stand.

What is the more perfect union we now seek today? What does it look like? What priorities, investments of time and effort, and sacrifices will it take?

To be sure, our work is now more than hand-stitching together the homespun of 13 colonies. For many today, a more perfect union means things like a safer neighborhood for their kids. Or the opportunity to achieve a better life. Or freedom from fear. Or a vaccine. Or getting back to normal after covid. Or returning to face to face classes. Perhaps we can imagine those kinds of dreams were in the hearts and minds of 18th century people as well.

The Preamble is realistic. It qualifies the word perfect with “more.” Our neighborhoods, we don’t realistically expect, will be perfectly perfect. But it is not too much to dream that our neighborhoods, along with our republic, can be better for more people.

Justice

What does the word justice mean to you? Recall those times in your life when you thought others didn’t treat you fairly. Our sense of justice is often based on our experiences with being treated fairly or unfairly. I can’t believe the ref called a foul on that. The other team has been getting away with murder. Whose side is the ref on? Or, why was that store clerk so rude to me but so nice to that other person? Or, everybody else on this highway is speeding and the cop pulls me over? What’s that about? Or, why was my starting salary $10,000 less that that guy’s? Our senses of justice, of comparative treatment and fairness, start young.

The Preamble’s “why” to “establish Justice” are the 16th and 17th words of the Constitution: i.e., one of the first and top priorities. The historical context of these words is monumental, linking to the July 4, 1776 Declaration of Independence and the Revolutionary War. The Declaration was mostly, in terms of word count, a recitation of injustices. The Declaration recited “a long train of Abuses and Usurpations” by the King, the monarch, George III, referred to as “He” repeatedly so as to reinforce, like a pointing and jabbing finger of blame, where the injustices had come from. Having declared independence from tyranny, the opposite of justice, the Preamble made establishing justice a top priority.

But we also know how contingent and imperfect that 18th century view of justice was, requiring later constitutional amendments to include African Americans, women, Native Americans and others within the meaning of justice. As we think about justice in today’s context, we see that the word “equality” is missing from the Preamble, at least expressly in the text. We’ll see that later amendments, especially the post-Civil War Fourteenth Amendment, put equality into the Preamble.

The word justice links to what we today call America’s justice system: courts, judges, lawyers, prosecutors, public defenders, police, jails and so on. “Equal justice under law” was engraved (in 1932) on the front of the U.S. Supreme Court building in D.C. American rule of law, despite many flaws and setbacks in actual practice, aspires to a preambular virtue of equal justice.

The Preamble’s reference to Justice connects to other language in the text, especially Article III and judicial powers. Federal judges, also known as Article III judges, preside in 94 federal judicial districts, including at least one district in each state, in D.C. and Puerto Rico. The U.S. courts of appeals (or circuit courts) are divided into 13 circuits, each one hearing appeals from the district courts within their boundaries. At the top is the U.S. Supreme Court, currently with 9 Justices.

The Constitution makes plenty of room for judicial power to be exercised with reason, wisdom and compassion, because the absence of those qualities leads to what the founding generation was breaking away from: tyranny. Read in the Declaration of Independence the list of “Facts... submitted to a candid World” about who and what makes “a Tyrant.” How do we know a Tyrant when we see one? Check the Declaration’s facts. A Tyrant makes judges “dependent on his Will alone,” obstructs the administration of Justice and refuses to assent to laws that establish judicial powers independent of the Tyrant’s will. American constitutionalism is indelibly stamped by the lived experience, by the real historical suffering and sacrifice, over the question: what makes a tyrant? Americans listed the facts of tyranny in the record, in the memory bank, in the Facts submitted to a candid world. Tyranny, in the American experience, is about arbitrary, coercive, unchecked and unreasonable abuse of power. It ties to the Hamiltonian question of rule by force. What forms of tyranny do you think still exist today?

Preambular Justice has a context, a story that includes its past and its present, a story of Americans rejecting “justice” dressed up as the will of a tyrant and choosing instead the rule of law. The rule of law includes judges who know the limitations on their power, the constitutional job of deciding cases and controversies based on the facts and the law

History influences the Supreme Court’s constitutional standing, legitimacy and reputation. The current Supreme Court under Chief Justice John Roberts is concerned about how the Court is viewed by the American public during times of political fracture. (More on this later.) A public perception that the Court is just as politicized as everything else in government is a big concern. What the Court actually does and what the public perceives it as doing are not always the same thing.

With both judges and ordinary people (which judges are too), reputations are more easily lost than won. The Supreme Court’s reputation, its historic role in American constitutionalism, includes but goes beyond the words in the concise text of Article III. Yes, it must decide cases and controversies. Litigants who pass through its doors win or lose. But the Court must also have an ear attuned to We the People. The Court is, after all, the creation of the Constitution and is thus part and parcel of its principles, including popular sovereignty. That doesn’t mean that We the People should decide cases. Or that the Justices should check which way the winds are blowing and decide cases on public opinion. It doesn’t mean that Justices must listen to a proverbial mob with pitchforks. It means instead that public trust and confidence in the Court and popular understanding of what judges do is essential to democracy. It means that the Court is part of the republican form of government the Constitution establishes. No, Justices are not supposed to be politicians or elected representatives making law. But neither should we expect them to be legal robots churning out decisions that are disconnected from the constitutional general welfare.

The Court’s reputation and role turns critically on the principle of an independent judiciary. If the public believes judges are deciding cases not on what the law is, but on what the judges’ politics and policy preferences are, the public will lose confidence not only in individual judges, but also more importantly in our Constitution’s highest Court which exceeds any individual judge. The Internet-juiced politicization of the Supreme Court nomination process and politically-charged Senate confirmation hearings feed the perception of pervasive politics.

When and if unelected judges go too far in overruling precedents and changing law that should be left instead to the legislative process (both state and federal), the judiciary opens itself to public opinion that it has overstepped its constitutional boundaries deciding “cases and controversies.” Public opinion tends to look to the courts as a default option when lawmakers are gridlocked or not doing what we want. But the Constitution doesn’t require that whenever We the People law-making gets stuck or screwed up, the Justices must ride to the rescue.

You may have heard the over-used term “judicial activism.” This term is an example of rhetoric that has lost real meaning because it cuts both ways. Charges of judicial activism, across the Supreme Court’s history, have been launched on both sides, with both liberals and conservatives claiming the Court was making policy rather than saying what the law is. The political rhetoric about judicial activism usually is in the eye of the beholder, shifting according to which side is on the winning or losing side. When my side wins, the Court is brilliantly constitutional. When my side loses, the Court is a bunch of judicial activists.

Domestic Tranquility

The Constitution’s choice to combine the words “domestic” and “tranquility” has multiple levels of meaning. Domestic as adjective means relating to home or family relations. It also means existing within a country. Not international. So domestic tranquility, to a generation that had fought a Revolutionary War meant peace at home, meaning peace in the new country.

But it also meant peace in the home, in the homes of We the People. Domestic tranquility encompasses both home and homeland. The Constitution wants both home and homeland tranquility, peace in both settings. The Constitution’s domestication, its respect for the homes of We the People, resonates from the Preamble to the Bill of Rights. There we find reference to “house” in Amendment III as well as to “peace.” “No Soldier shall, in any time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” This is a recognition of the value of property, one’s house.

But it goes beyond the bare fact of material property rights. To a Revolutionary Ware generation, no more monarchs would quarter troops in their homes without their consent. No King could so enter the castles of We the People, their homes. How could one’s home be tranquil if soldiers could be quartered there without the owner’s consent? Further, the Third Amendment distinguishes “time of peace” and “time of war,” giving the government more leeway in the latter case to quarter soldiers in a house, but even then only by rule of law rather than royal prerequisite. We the People were fed up with royal perks.

Hard on the heels of Amendment III of the Bill of Rights, is another echo of the preambular idea of domestic tranquility in Amendment IV. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Again, we see the domestic tranquility theme in reference to “houses” but also, more broadly to “persons,” “papers,” and “effects.” Security of person. Security of home. Security of papers. Security of effects. The word “effects” means broadly personal belongings (and is today used in many homeowner insurance policies). Again, the Constitution has an interest not only in material property rights, but in the security of people and, in today’s lingo, our stuff. Our persons and our stuff include all sorts of stuff. Especially so in our 21st century consumer culture. Our cars and trucks. Our phones. Our apartments. Our computers. Our data. Our blood and DNA. Unreasonable searches and seizures by government actors without a court order, a warrant, is both unconstitutional and disruptive of domestic tranquility. In American law, search and seizure cases fill volumes and are a regular part of the dockets of our courts, especially in criminal cases.

Domestic tranquility relates to privacy, famously defined by Supreme Court Justice Louis Brandeis, as the right to be left alone. Does that resonate with you? Do you like being left alone when you want to be? The right to privacy is today well-established in American constitutional law, albeit sometimes in controversial form as the basis for the Roe v. Wade abortion precedent.

Domestic tranquility is also about homeland security. In November 2002, in response to 9/11, federal government created the United States Department of Homeland Security or DHS. Today DHS is the third largest Cabinet department in the Executive Branch (behind Defense and Veteran Affairs) with an annual budget of roughly $50 billion and 240,000 employees. The American experience of September 11 has had a profound impact on American constitutionalism including the ongoing War on Terror, immigration policies and practices, border security, homeland security regulations, searches and seizures, cyber-security, data privacy and lack thereof, due process rights and other legal areas. Now, domestic tranquility faces Covid-19.

When the words domestic tranquility were written, the United States was at the advent of its role as a geopolitical power. A major reason to constitute the United States, to form a more perfect union out of a handful of former colonies, was to say boldly to the world: America is now stepping onto the world stage. We are no longer on the bench, second string players to the British Empire. We will explore and expand across our “island” continent. We have enormous geographical and natural resources. Our enemies will need to cross oceans to disrupt our domestic tranquility.

After two plus centuries, America’s role as a geopolitical power has a vastly different world context. Domestic tranquility is now, as never before, linked to world affairs and a world connected by tech. The security of “persons, houses, papers and effects” is now seen as globally contingent. A virus spreads across the world, starting from remarkably small and inconspicuous places. Trade wars spike and drop stock markets. Build the wall is chanted at political rallies. Computers are hacked. Domestic election interference crosses oceans (faster than sailing ships). Identities are stolen. Account data is breached. Globally, refugees are fleeing hostile homelands to make new homelands. Xenophobia is ascendant.