Homer Simpson: Founding Father
Is Homer Simpson really the embodiment of the everyman?
I think in many ways, Homer is the person that the founding fathers wanted to both protect, and protect the rest of us from.
Homer is foolish, selfish, and stupid, but honestly wants to do the "right" thing. He is easily swayed on what is "right," and can shift his opinions with the wind. He is both the political extremes and the wishy-washy middle. I would imagine that he subscribes to the Nation, and listens to the Savage Nation. But then Homer votes based on the last commercial he saw.
The Constitution was written to protect us from the whims and fancies of people like Homer. Whoever or whatever the enemy or issue of the day is, Homer would over react and accept any action for safety or retribution.
Homer is why an originalist interpretation of the Constitution is important. The Constitution allows amendment, but not on a whim. The Constitution does not prevent change and growth, but it rarely demands it. Homer is served by a bedrock that requires a national consensus to mutate, and not 5 old judges who determine their own meaning, and then requires 2/3 of the legislature and 3/4s of the states to overturn the decision of these 5 people.
Simply speaking, the Constitution does not prevent Homer from being Chief Justice of the Supreme Court, or President of the United States. However, the President has checks and balances to his decisions that are far easier to implement than the checks on Supreme Court decisions. A President is elected for only four years at a time, and has a total of eight to do his worst. To do his worst, he needs Congress to vote for his plans. In contrast, lifetime appointments coupled with nearly impossible rules to overturn the decisions of five people leaves the Homer Quotient too high, when those decisions are not centered on the original intent of the people who wrote the Constitution and laws that the decisions are based on.
Whether you are on the left or the right, you have to believe that the danger of getting your wrong "Nation" Homer on the Supreme Court is too risky to leave in the hands of non-originalist jurists.
posted by Jrudkis @ 11:25 PM
3 comments
3 Comments:
I like the Homer/Everyman analogy.
I also think that you hit on an extremely important point about Homer's reactionary tendencies. This is why we have a republican (small-r) form of government, rather than a direct democracy in the U.S. The 10th Federalist paper tells us that the risk of direct democracy is that mob rule has the potential to allow the passions of faction to overcome our better judgment about what is in the best long-term interests of the people as a whole. The separation of powers outlined within the Constitution, along with a bi-cameral legislature was designed to encourage rational, rather than reactionary decision-making. The 10th Federalist also emphasizes that the purpose of the Constitution is NOT to allow democracy, but to protect Liberty.
With respect to the Supreme Ct., Justices face a dilemma. They are granted lifetime appointments to remove them from undue political influence, but they won't be appointed unless they are loyal members of a political party. Amazingly, the Constitution contemplates even this, by requiring the advice and consent of the Senate before federal judicial appointees can take the bench.
The key is to make sure the PROCESS works. If the function of judges is to serve as impartial interpreters of the law, then current Senate filibuster rules seem to work quite well. Only if an appointee has demonstrated themselves to be decidedly partisan will a filibuster be supportable. Changing the Senate rules for the purpose of being able to push through the most partisan of appointees will only serve to weaken the U.S. in the long-term, by undermining the rule of law.
Your Homer analogy just isn't that helpful. People preach and preach today that originalism is the right judicial philosophy. They say that it protects citizens from judicial activists on the bench. They say that it respects the intent of the Founders and the will of the People. I don't deny that originalism is a helpful starting point in adjudiciation. But it's also a double-edged sword: it isn't able to adjust to broad social change and it certainly doesn't consider the dangerous illiberal tendencies of democracy. Furthermore, originalism is a joke among historians because they are honest enough to admit that the historical record of the Founding isn't crystal clear. It's the lawyers who think otherwise. Robert Bork, no slouch himself in originalist circles, can't consistently defend originalism. (See Richard Posner's review of "The Tempting of the Law" in Stan. Law Review and Bork's testimony before the Senate on Brown.) The fundamental problem, as I see it, is straightforward: originalists themselves admit that they can't consistently defend originalism and that exceptions exist. When you concede this point, you have judges saying what exceptions apply and what exceptions don't apply, and that in itself is a form of judicial activism, according to the logic of originalists. Two legal scholars argue that Justice Scalia adamently defends originalism not because he believes it, but because it is necessary that others believe the Court is interpreting the Constitution rather than relying on so-called policy preferences. Finally, if you're going to defend originalism on the grounds that it protects against judicial activism, I hope you're willing to defend justices--especially Rehnquist before he was elevated to Chief Justice--who don't respect precedent. That's judicial activism of another sort but just as dangerous.
I guess I am a modified originalist. I think that after Marbury gave the Court final say in interpretation, I think that the Court should be stuck with its decisions of first impression on meaning of the words. They can refine within the framework in future cases (like apply the definition of "unusual" to today's world), but to completely change the interpretation should take an amendment. So, I would agree with precedent being as important as the Founding Fathers, at least for constitutional issues.
When an amendment is passed, the court again can interpret the words that are effected by the amendment as a case of first impression. So, for example, if we passed an amendment regarding gay rights that effects the meaning of the 14th amendment, the court is reasonably charged with determining what the 14th means again, since the Constitution changed through the amendment process.
Frankly, I don't think we are that far off from this model. Even really bad decisions like Dred Scott and Plessy were overturned either by amendment or a first impression of a different clause, not a complete reversal on the meaning of the improperly defined clause. I think Roe was wrongly decided, but I think it should take a Constitutional amendment to reverse rather than one dead judge.
But this is still all because Homer can't be trusted to have free rein. The Constitution is not meant to be easily modified, and that includes its interpretation by judges.
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