Justice is on the ballot

This is nothing new, justice is always on the ballot. Economic justice is always on the ballot, just as are justice for racial equality, criminal justice reform, access to affordable housing and health access, as are educational opportunities for all kids in all communities to name just a few.

In this election, science is also on the ballot. The pandemic has put in stark relief what happens when those in public office ignore science. The fires in the west, the drought in the east, and our overall dramatic weather patterns are ignored by those who deny climate change. Related to this is that facts are on the ballot, inadvertently placed there by those fearful of facts challenging often baseless preconceived notions.

In this election, political justice is on the ballot. Access to vote in the face of calculated efforts to suppress the vote is on the ballot. The restoring of the Constitution’s checks and balances is on the ballot. Whether we will defend democracy against the effort to impose an authoritarian system of government is very much on the ballot this year. Political speech is on the ballot, placed there by those who would drown it out through outrageously false claims or overwhelming amounts cash flooding elections, or too often both.

And the Constitution and the rule of law are on the ballot. Most see the Constitution as an esoteric relic, unrelated to our lives. Others see the Constitution as an almost divinely inspired document that should be followed to the letter - as understood and written by its authors in 1787. Still others see the Constitution as a living document that embraces a set of principles that can be applied to our lives today.

I write this on the day that Amy Coney Barrett is to be confirmed by the senate as as associate justice of the United States Supreme Court. There is nothing short of an unexpected serious event that can change that. But it might be useful to understand her view of the Constitution as it will affect each of us.

Barrett is an originalist. She believes that the Constitution is to be applied as written and as publicly understood in 1787. The principle of stare decisis, where legal case precedents are to be respected, does not apply to decisions seen as wrongly decided because they do not conform with her view of original intent. However, that said, she concedes that there are some cases “wrongly” decided, so called super precedents (e.g., Marbury v. Madison, Brown v. Board of Ed.), that are so ingrained in our society that overturning them would create more harm than good.

However, it isn’t difficult to create a thought experiment to imagine this originalist view as applied to women’s reproductive rights (privacy established in Griswald) and health care (as upheld in Sebelius).

We know from her decisions on the 7th Circuit Court that she views gun ownership as an individual right and not a public or civic right, undercutting a central tenet of the Heller decision. We know that she opposed how the First Step Act was applied in a sentencing case contrary to the plain text of the Act and a sworn affidavit by members of Congress who worked on the Act.

At her confirmation hearing, Barrett testified that gun ownership as an individual right was to be more highly regarded than the public right to vote. Clearly one needn’t work hard to predict how she will view election challenges that make their way to the Court over the next few weeks, or the evisceration over the next few months or years of what remains of the Voting Rights Act.

The rule of law has been slowly and steadily eroded over the past several years. Police departments fail to meet their duty to impartially and dispassionately treat ALL people equally. Too often we have videos of persons of color being killed by police officers. And often we have seen these officers escape prosecution or when charged be charged with seemingly lesser offences than their conduct would warrant. The rule of law unequally impacts low income individuals and families who, as I have written in my book, are confronted by legal threats in matters of housing, debt collection, and family matters. Too often they are left to fend for themselves because lawyers are either unavailable or unaffordable. In many instances, because of their lack of overall resources, adverse outcomes can be catastrophic.

We have seen the Department of Justice‘s wonton abuse the rule of law. Not long ago the DOJ sought to withdraw charges against a defendant - a person who was once an advisor to the president - who twice pleaded guilty to those charges. The DOJ has been enlisted to investigate the president’s political opponents, and has refused to defend statutes enacted by the congress and signed by the current president’s predecessor.

Clearly there are more items on the ballot, civility and decency are important for a smooth functioning of the government in order that it serve our communities. But vital to democracy is the concept of justice in all its forms. While in my book I have noted how others describe justice, in the end it’s all about fairness. Each of us is entitled to fair treatment, a fair shot at opportunities, and a fair shot at the necessities that not only make life a little better but are necessary to the maintenance of life itself.

We may not be able to revisit the past but we can shape our future. In the last analysis, elections are not about the candidates, their campaigns, or their political parties. Elections, in a democracy, are about the voters. It’s the one time individuals can join with other likeminded individuals in common cause to impact the direction of our communities.

For each of us, justice is on the ballot.