The last word on the law

 

The last word on the law

Courts or legislatures?

Gordon L. Weil

Who should decide if a law is constitutional?  The courts or the people?

This question does not exist only in an academic ivory tower.  As people increasingly see courts as partisan, it is a real issue.   A Maine case last week focused on it.

The American Constitution is silent on the issue, but the U.S. Supreme Court lost little time in asserting its authority.   It declared that it alone could conduct “judicial review” – deciding if laws are constitutional.  The highest state courts have done the same.

This ruling was authored by Chief Justice John Marshall, a member of the Federalist Party, which was dying.  By taking broad powers for the Court, he would be empowered to use his long tenure to support the Federalist view as a check on the rising Jeffersonian democracy.   Thus, from the outset, the Court was political.

While court decisions are supposedly objective and nonpartisan, it’s obvious that judges’ opinions often reflect their personal philosophy or the positions of the political parties that put them on the bench.  Pledges of neutrality may assure judicial independence, but not objectivity. 

Because judges have known ideological or political leanings, the courts inevitably take on a legislative role.  When they define what the law is, they may substitute their judgment for the lawmakers’ intent and become lawmakers themselves.

Court views may change over time, as when the Supreme Court reversed its earlier pro-abortion decision in Roe v. Wade, causing the public to see the judiciary as essentially legislative and not reliably objective.  As judicial rulings have become more controversial and apparently partisan, public support for the courts has been declining.

If courts become more like legislatures, should legislative bodies representing the people, not the judges, be responsible for deciding on constitutionality?   Two differing answers have come from two states, Maine and Alaska.

They both focused on  ranked choice voting, which modifies how votes are counted in multi-candidate elections, potentially eliminating a candidate winning simply by being “first past the post.”  In 2016, a Maine referendum launched it for federal offices and for state elections of governor, members of the House and senators. 

But the state Supreme Court ruled that the Maine Constitution requirement for election by a “plurality” prevented using RCV for state elections.  It cited the state’s troubled history involving a disputed election that had almost led to armed conflict as the reason for the requirement for a simple plurality.  The Legislature repealed the referendum result.  In 2018, a second Maine referendum approved RCV for federal offices and state primaries, but not for state elections.   

Two years later, Alaska voters narrowly approved RCV for both federal and state elections.  In 2022, the Alaska Supreme Court ruled that the Alaska Constitution, requiring “the greatest number of votes” to be elected, allows for RCV.   It attacked the earlier Maine decision for failing to take good election policy into account.  As in Maine, Alaska voters decided a second time on RCV, retaining it by a margin of 664 votes out of 340,110.

In a ruling last week, the Maine justices unanimously rejected Alaska’s unusually harsh criticism, and explained the detailed vote counting procedures laid out in the Maine Constitution, requirements that are absent in Alaska.

In Alaska, the will of the voters, expressed by a slim majority in a referendum, dictated the Court’s determination of what the State Constitution meant.  The Court concluded that RCV is constitutional, based on its political judgment of the “State’s interests in allowing voters to express more nuanced preferences through their votes….”

In Maine, RCV proponents asked the Court also to follow referendum results and its successful use in the state’s elections for federal offices.  The justices would not agree, finding that the Constitution’s definition of “vote” in state elections means the ballot cast by the voter that must be counted in their municipality, which precludes RCV.

In the U.S., the highest court, federal or state, usually decides on the constitutionality of laws.  In Britain, without a written constitution, the Supreme Court accepts Acts of Parliament as being constitutional.   In the RCV rulings, Maine had retained its traditional judicial review authority, while Alaska deferred to a referendum, a legislative act, leaning toward the British model.

Because American courts, with unelected membership, are increasingly seen as legislative bodies, adopting the British system of allowing the elected legislature to decide on constitutionality might seem to be a realistic alternative.  But there’s no chance of dropping judicial review. 

A hybrid solution could allow court decisions on constitutionality to be overridden by a legislative body, voting by a super majority vote within a fixed period after the court’s ruling.  Marshall’s concept of judicial review is not included in the U.S. Constitution, so this change could be made by law.

History shows DEI works; Eisenhower's Black soldiers

 

Gordon L. Weil

President Trump has set out to kill DEI – diversity, equity and inclusion.

His message is that the traditional system has been shunted aside by preferences given to members of groups that have suffered discrimination.  Groups helped by DEI include women, Blacks, American Indians, and Asians.  In his view, they have gained an advantage over white males.

The key element of his policy is the assumption that merit has been sacrificed to political correctness.  Competence is sacrificed.  He rejects the idea that DEI helps ensure that members of affected groups, though equally qualified, are not excluded because of their sex or race.

Trump wants to end DEI policies across American society, not only the federal government.  He can use the influence of federal spending to make that possible.  He also seeks to erase the history of discrimination, implying that leadership roles played by Blacks, women and others were due to their favored treatment, not their own merit.

Nowhere is his policy more apparent than in the Defense Department.  It may have been embodied in an excessively clever statement by a Pentagon information officer who issued a statement that DEI “Divides the force, Erodes unit cohesion and Interferes with the services’ core warfighting mission.” 

Carrying out Trump’s policy, the department went too far and erased recognition of Jackie Robinson’s service, the role of the Tuskegee airmen and a Black general who had won the Medal of Honor.  It was an attempt to whitewash history.  Strong opposition caused this erasure to be reversed, and the official was reassigned to less public duties.

He was wrong.  While you can change policy, you can’t change history.  A still almost unknown story reveals just how wrong he was.

Years ago, I wrote a book about building the Alcan highway in 1942.   It was a hastily constructed road to get troops and supplies to Alaska in the event of a Japanese attack.  In response to Pearl Harbor, President Franklin D. Roosevelt ordered the Doolittle raid on Tokyo and the Alcan.

It was built by seven Army Engineer regiments, four composed of white troops and three of Black troops.  The Army was not integrated below the regiment level.  The officers of the Black units, including my distant cousin, were white.  The road was quickly built.

Many of the Black soldiers were then assigned to Louisiana.  In the mess hall, they were given spoons but denied forks or knives.  They faced open racism.  As Black soldiers at many Army posts were similarly mistreated, they rebelled and were quickly shipped to Europe to drive supply trucks.

Following the successful but costly Battle of the Bulge in Belgium at the end of 1944, General Dwight Eisenhower, the supreme Allied commander, found the Army was short of front-line combat troops.  He wanted to add Blacks from engineer units, but was warned that he would have to ask permission from Washington.

Instead, Eisenhower called for Black troops, in excess of engineer needs, to volunteer for assignment to combat units.  Many volunteered and most were accepted into new platoons integrated into white companies and went into battle.  In theory, the separate Black platoons would not amount to integration.

But a platoon is a small unit, and they ended up fighting alongside white platoons.  Some Germans could recognize the presence of American forces by their Black troops. When the war ended in Europe so did the Black platoons.

Given the importance of wartime morale, the Army Department quietly conducted surveys of soldiers.  White soldiers who had fought together with the Blacks were asked for their reactions.   Only five percent said Blacks were not as good as whites, while 17 percent of officers and 9 percent of enlisted said they fought better.

Overwhelming majorities of officers and enlisted rated them favorably.  Ratings were highest in units that had faced the heaviest fighting.  Problems arose mainly when troops from outside units came in contact.  Survey respondents mostly favored the platoon approach, some saying that individual assignment could cause problems because of certain soldiers’ racism.

The results of those 1945 surveys would destroy the foundations of today’s attacks on DEI.  But Army bosses kept the surveys secret, presumably because the findings would make the case for integration.  Digging in the National Archives decades later, I found them.  My interviews with Black Alcan engineers confirmed the data.

These surveys are proof of the false basis for the Pentagon claim and for Trump’s opposition to DEI.

Trump removed the Black general chairing the Joint Chiefs of Staff, as well as Navy and Coast Guard chiefs, both women, without explanation.  Their appointments probably looked like DEI to him.

DEI should not place underqualified people in jobs.  Opposition to DEI should not be used to deny jobs to qualified people.  Trump’s claim of using merit alone obviously lacks merit.