Before you complain that by overturning certain precedents which have stood for years, the new majority on the U.S. Supreme Court is “threatening democracy,” consider how some of the Court’s precedents were established in the first place.

One of the first warnings of how headstrong and arbitrary courts could be is due to the Anti-Federalist who wrote under the pseudonym “Brutus” (probably the New York State judge Robert Yates).[1]  His favorite example, drawn from William Blackstone, was how the Court of Exchequer in England slyly expanded its jurisdiction by allowing plaintiffs to claim that they were debtors of the crown when they were not.

An even stranger example is found in the annals of the Court of King’s Bench, which was supposed to be restricted to suits by parties who had suffered trespasses or other injuries by violence.  On one occasion, a plaintiff who was angry about having been sold diluted wine alleged that the merchant had watered it "with force and arms and against the peace of the King, to wit with swords and bows and arrows."[2]  The Anti-Federalists, who believed that under the new Constitution the judiciary would be too powerful and heedless, expected American courts and judges to behave in much the same way.

Brutus was right to be concerned.  The bizarre lengths to which determined judges can take this sort of thing is suggested by the dissenting opinion of Justice Douglas in Sierra Club v. Morton, a 1972 case in which an association of environmental activists sought to halt the construction of a resort in a national park.  Mr. Douglas proposed fashioning “a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded,” so that “environmental objects” could “sue for their own preservation.”[3]

The prospect of vegetables and minerals bringing suit in federal court makes today’s arguments about animal rights seem almost quaint.  Although in that case, the majority declined to swallow the particular legal fiction suggested by Justice Douglas, it would be a grave mistake to suggest that Supreme Court Justices have been averse to fictitious claims.  Courts in many of the states are still up to much the same shenanigans.

A fictitious history has been employed to conclude that the First Amendment requires neutrality between religion and irreligion;[4]

A fictitious psychology has been employed to maintain that the only possible motive for opposing special preferences for homosexuals is “animus” or irrational hatred;[5]

A fictitious embryology has been employed to insinuate that a child growing and developing in the womb does not enjoy actual life but only "potential life";[6]

A fictitious classification has been employed to characterize behavior which is lethal to babies as reproductive behavior;[7]

A fictitious teleology has been employed to suggest that the natural reason for the institution of marriage is not the protection and nurture of children but the sexual convenience of grown-ups;[8]

A fictitious semantics has been employed to interpret the Constitutional guarantee of "free exercise of religion" as having no necessary reference to religious acts;[9]

A fictitious grammar has been employed to treat categorical prohibitions as implying qualified permissions;[10]

A fictitious logic has been employed to suggest that if the Constitution protects certain highly specific and enumerated kinds of privacy, then it must also protect all kinds of privacy;[11]

And a fictious vocabulary has been employed to suggest that if the Constitution protects privacy in the usual sense of freedom from unwanted attention and intrusion, then it also protects “privacy” in the novel sense of freedom from judgment on one’s actions.[12]

For three generations, the use of fictitious suppositions has been so pervasive a feature of American Constitutional interpretion that we should no longer speak of actual jurisprudence, but of virtual jurisprudence.

How the support of such high-handedness concerning the Constitution “protects democracy” is impossible to understand.


How a Constitution May Undermine Constitutionalism


1.  Letters of Brutus, numbers 11 and 12.

2.  Rattlesdene v. Gruneston, Y.B. Pasch. 10 Edw. II pl. 37, p. 140-41 (1317) (Selden Soc.).  For discussion, see Eben Moglen, "Legal Fictions and Common Law Legal Theory: Some Historical Reflections," 10 Tel-Aviv University Studies in Law 35 (1991.

3.  Sierra Club v. Morton, 405 U.S. 727 (1972), at 742.

4.  "The wholesome "neutrality" of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.  And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees."  Abington School District v. Schempp, 374 U.S. 203 (1963), at 221.  Notice that the Constitution is inconsistently said to require neutrality between religion and irreligion because it recognizes the value of religion.

5.  "[T]he amendment seems inexplicable by anything but animus toward the class that it affects"; later in the same case, "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  Romer v. Evans, 517 U.S. 620 (1996), at 631, 633.

 6.  "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."  Roe v. Wade, 410 U.S. 113 (1973), at 163.

7.  "[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.  The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."  Planned Parenthood v. Casey, 505 U.S. 833 (1992), at 856.

8.  Obergefell v. Hodges, 576 U.S. 644 (2015.

9.  "Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."  Gillette v. United States, 401 U.S. 437 (1971), at 461 (emphasis added).  Notice that the statement of the Court goes far beyond the mere assertion of a tacit condition that religious conduct be within the bounds of good order.

10.  "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."  Wisconsin v. Yoder, 406 U.S. 205 (1972), at 215.  According to this alleged interpretation of the First Amendment, even "legitimate" claims to the free exercise of religion can be “overbalanced” by "interests" which judges consider sufficiently important, even though nothing is said about them in the Constitution.  Yet the First Amendment states that "Congress shall make no law ... prohibiting the free exercise of religion" (emphasis added).  Again notice that the statement of the Court goes far beyond the mere assertion of a tacit condition that religious conduct be within the bounds of good order.

11.  “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  Griswold v. Connecticut, 381 US 479 (1965).

12.  Ibid.