This article first appeared in the St. Louis Beacon, June 28, 2012 - Several years ago, I wrote a column in which I likened lawyers to vampires. The obvious joke notwithstanding, the analogy had nothing to do with blood-sucking.
Rather, it referred to a precept of traditional vampire lore — namely, that the undead cannot enter your dwelling unless they are invited to do so. Once inside, however, they tend to take over the place and run amok.
Like vampires, lawyers lack jurisdiction in disputes until a party with standing in the matter invites one in. After that fateful call, the jig is up because when one arrives, others are sure to follow.
Even in our litigious society, individuals are free to resolve private issues as they see fit. If the neighbor’s kid hits a baseball though your den window, sensible people usually strike a fair resolution without professional intercession. But if one side elects to lawyer up, the other feels compelled to do likewise and the decision-making process is forfeited to the courts. Suddenly, we’re arguing the pain and suffering endured by the homeowner versus the emotional trauma inflicted upon the errant batsman.
It strikes me that as a society, we’ve become a metaphor for the two dimwits who can’t figure out how to replace a broken pane of glass. Our public dialog has devolved into name-calling and bantered accusations traded between intractably opposed factions. And though opposing views and conflicting opinions have always fueled the progress of the republic, the current gridlock has become so severe that it has turned the constitutional order of governance on its head.
The first and longest article of the Constitution provides for the Congress. This is where the founders anticipated that we would argue viewpoints and hammer out agreements through our elected representatives. Each state is represented equally in the upper chamber while the lower — the so-called “People’s House” — is allotted based on the population.
Members of Congress are supposed to reflect the values, interests and aspirations of the people who sent them to D.C. Unfortunately, they do.
The last two great campaigns of the 20th Century — WW II and the Cold War — had a galvanizing effect on the domestic population. In each, the nation itself was at stake so political differences tended to stop at the shoreline and politicians were occasionally forced to bury their hatchets on behalf of mutual survival.
When the Soviet Union went out of business, however, the prospect of utter annihilation waned, thus freeing contentious factions to pursue their own interests with little regard for the common good. As a result, Congress has come to resemble an engine with a blown head gasket — it makes a lot of noise but is incapable of going anywhere.
Unable to formulate a coherent agenda, a divided legislature’s primary goal seems to be thwarting executive initiatives, which is not to say that the president is powerless. Indeed, Mr. Obama recently announced that he would cease enforcing portions of immigration law that he finds objectionable.
Interestingly, the former constitutional law professor had advised as recently as last year that his office lacked that legal power. It’s amazing how an election year can warp scholarly analysis…
But the real beneficiaries of our collective paralysis are the nine robed lawyers who comprise the U.S. Supreme Court. Appointed for life, they are presently answerable to no one because the Republican-controlled House would be reticent to vote to impeach a conservative justice and Democrats in charge of the Senate are unlikely to remove a liberal one.
Given the failure of political process, the court has emerged as a functional oligarchy that has all but assumed the duties of governing. It often appears to dictate what a supposedly free people are allowed to do based not on dispassionate legal interpretation, but on the individual justice’s personal biases dressed in a constitutional skirt. Remember Bush v. Gore?
Because of this strange metamorphosis, Justice Anthony Kennedy frequently becomes the most powerful man in America because he is the sole swing vote on an otherwise ideologically divided court.
The Supremes have had a busy week. First, they decided that mandatory life sentences for murderers under 18 years of age now constitute cruel and unusual punishment. This new development is credited to our evolving sensibilities as a society. Oddly, 4 of the 9 justices have apparently failed to keep up with social evolution and they subsequently dissented from the majority opinion.
Next the court decided that illegal immigrants enjoy a constitutional right to haphazard enforcement of the laws that would deport them and then barred the state of Montana from regulating political contributions from fossil fuel interests.
Of course the big decision is scheduled for this morning when the press will huddle like medieval serfs on the courthouse steps to learn what manner of health care the masters will provide for their subjects.
I am reminded of the observation of Dostoyevsky’s Grand Inquisitor, who also ran a rather influential court during the Spanish Inquisition. He remarked, “Nothing has ever been more insupportable for a man and a human society than freedom.”
Luckily, we’ve managed to rid ourselves of the annoying virtue that our naïve forefathers thought of as “the blessings of liberty.” Rather than forge our own destiny, we can rely on lawyers to tell us how to live. Here’s hoping the vampires are friendly.