Law for Sustainability, Purpose and Context
Serving from 1812 to his death in 1845, Supreme Court Justice Joseph Story “wrote several notable opinions for the Court that were instrumental in asserting and protecting the supremacy of the Constitution and federal law.” https://supremecourthistory.org/supreme-court-civics-resources/life-story-joseph-story/. When he had come to be regarded as a Federalist, but then surprisingly ruled in favor of Jefferson in the embargo case, it healed divisions tearing the country apart. Had he been appointed by Andrew Jackson to succeed Marshall instead of the pro-slavery Roger B. Taney, the country might not have had to receive the calamitous Dred Scott decision, as Story had already displayed his sense of justice when ruling that the Amistad slave ship passengers were actually free people who had been kidnapped: people whose rights the United States was “bound to respect” (the opposite of what Taney said in Dred Scott).
It seems that people need reminding of American history, because the ideas of the conservatives about restoring what they think we’ve lost are so often rejection of what we’ve gained. The American Constitution gives the people of this country – all of us – a legislature to make laws that the majority wants, a court to make sure the majority doesn’t override basic rights of minorities or go against the purposes that made this government of us, and an executive to carry all that out faithfully. Only if you are not getting good information about what is happening can you ignore that this has been reversed by the current Administration: they want everyone to follow the Executive. History reminds us that this is what no one wanted in the early days of our republic – the Jeffersonians accused the Federalists of wanting a return to monarchy, and then the Federalists accused Jefferson of overreaching. As Page Smith tells the story in The Constitution,
“In Jefferson’s view we were entering, with the American and French Revolutions, a new era in which human reason would triumph over ignorance and superstition, an era in which, as one of Jefferson’s favorite authors, John-Jacques Rousseau, had put it, ‘the voice of the people is the voice of God.’ Liberal political theorists, on the other hand, had yearned for centuries for ‘a government of laws, not of men.’ That was because they saw all men, however situated, as equally inclined to ‘self-aggrandizement’ – greed and exploitation. It was only through fair and equitable laws, properly administered, that the exploitation of one class or group or interest by another could be avoided. For men who held to such a conviction, the notion of a Supreme Court, a relatively impartial and independent power, charged with thwarting the popular will when that will was arbitrary and destructive of the legitimate rights of others, was one of the great political achievements in history.
There was much to be said for both views.”[1]
The Federalist John Marshall at the head of the court through successive anti-Federalist administrations created a kind of balance, but Smith points out that it was not only the famous Marbury v. Madison decision in which Marshall gave Jefferson the result he wanted (reducing the possibility that Jefferson would ignore the court's order and weaken it, and at the same time affirming through reason, the power of the court). There were other decisions that showed how the court was an essential tool for bridging the gaps between worldviews, and became accepted for this essential purpose.
[1] A Documentary and Narrative History, 1980, pp. 336 – 337.
When Jefferson, who had accused former executives of king-like overreach, behaved that way himself, placing an embargo on trade as a bargaining chip in foreign relations, New Englanders who depended on trade began to talk about secession in response.[2] Jefferson issued an order to counter the resistance, instructing his Treasury Secretary to detain vessels. William Johnson, whom Jefferson had appointed, overturned the President’s order, calling it “an unsanctioned encroachment upon individual liberty”. Then, Federalist John Davis ruled that the Embargo Act itself was constitutional.[3] Two giant rulings that went against political leanings, that showed party interests would not rule, because of the court’s fidelity to principle. Smith writes that “both decisions had a moderating effect on party animosities!” (Exclamation point is not added, it’s in the original). He notes, “If the decision had gone the other way, it is hard to imagine that a fatal breach between the Northern and Southern states could have been avoided.”
Today we read the news of the dismantling of our public programs that are intended to help the world sustain itself, people to feed themselves, to know when storms and pandemics are coming and take action, to respond to threats (today the NY Times reports on the closing of EPA’s science department, last week it was the Chemical Safety Board and the program that stopped Ebola last time). These efforts were established in fulfillment of the intent of the Constitution. They are consonant with, not a departure from, the original social contract that our founders created for all who would come here. The judges put in place by the Republicans of today raise the banner of original intent. They represent what it means incorrectly. Environmental citizens should salute that original intent, and shun the nonsensical (and recently, inhumane as well) interpretations that are used to try to turn the clock back.
The original intent of the founders was to turn the clock forward, and patriotism requires doing the same: continuing to expand the franchise, the mutual recognition of equality, and build systems based on the common sense of common existence. Madison wanted to use government to keep society roughly equal – economically, not just politically.[4] FDR’s Four Freedoms, for speech and religion and from want and fear, is the same interpretation of the point of government, a similar take on a social contract that makes sense. The original intent of the founders was also clearly to create something that would prevent the excessive concentration of power, rather to keep it well distributed, which would empower the government to protect the whole of society, and not just follow the default of history, to the domination of the excessively self=interested.
These are, as they say, times that try the soul, but it’s the mindset as well as the soul. The mindset needs a reset.
We can restore the original mindset. We can work to renew and restore the original social contract people wanted after they read Common Sense and the Declaration of Independence. We need the mindset that won approval when the Constitution was ratified after extensive public debate in special conventions in what may have been the most dramatic expansion of the free exercise of the electoral franchise in Western history up to that time, about how we take a system of liberty and make sure it also is an ordered and workable system (unlike, say, what happened after the French and Russian Revolutions opened things up just to allow for takeover).
Summing up the entire democratic canon of statements is not easy, but it also not that hard to see that it is a balancing act. We don’t have agreement on lots of things but we agree to work together, and the Union is held together by compromise, when things can’t be worked out, (or dissolves into Civil War), and it is best built by consensus, agreement. Government is best at the local level, so many have said and sought to prove, but the state and federal levels have jobs to do in helping everyone, and there are broad rights and duties that anyone can see that it makes sense for our government to address them. Agreement, not discord, is what built America, and is at hand if enough of those who believe this come together.
The exclusive focus of the Republicans (including some judges appointed by them) on government not interfering with business, even when businesses are destroying the planet we live on, is clearly wrong and we deserve a jurisprudence that does not find ways to avoid this and other basic acts necessitated by reason.
The Constitution cannot be interpreted to mean laissez-faire economics, even if that is the policy in place at the time it was written. It does not privilege business over people. You cannot provide for the General Welfare, an express power of Congress, by ignoring the environment. If the way we think about the Constitution does not clearly include protecting the environment by necessary implication in order to protect the people or their ability to live and/or be happy, it is not possible to make rational sense of what it says.
Not by any fair or plain reading can the Constitution be rightly interpreted to mean women don’t have the right to control their own bodies, even if that was the case back then. It makes no sense and the original intent was for our own laws to make sense. Trying to understand the logic of the conservative jurisprudence we see in the Supreme Court cases I give my students to read can be difficult. Reading page after page rationalizing a result that absolutely appalls my students (and the three regular dissenters) can be a mind-bending exercise.
For example, the “Major Questions Doctrine”, which seems to make sense at first glance. The conservative majority made it up not too long ago. It says that if a regulation is going to have a major impact on businesses, the judges ought to be able to find in the statute that empowers the agency some clear direction from Congress to do that. Otherwise we would have Congresses screwing up innocent businesses all the time, and these are just citizens pursuing their freedom to try whatever they can to get by. Sounds good. But in fact the doctrine has been used to stop EPA from regulating dirty industries, so I ask my students, was Congress clear when it created the Clean Air Act? Did it want EPA to prioritize the ability of coal companies to make money, or the ability of the populace to breathe? To be clear, only ignorance of the history of the environmental statutes could lead to a conclusion that Congress needed to spell things out more to justify acting to discourage dirty industries from poisoning us all.
The Clean Power Plan developed under Obama and then Biden, stymied by the Court in unorthodox rulings, was a model of flexible and intelligent regulation that allowed every state to choose their own path to cleaner air. The conservative jurisprudence that stopped this sensible and necessary act of governance – fulfilling the duties envisioned by the founders of protecting – will be regarded as absurd by future generations looking back and asking why we stopped acting on climate change and other earth-degrading problems, after we had started acting and having successes. They will not be confused, perhaps, as we are, about “original intent”, but may see it clearly as a ruse, and the conservative jurisprudence of this time as a decline in the act and role of public reasoning. Hopefully future generations will also teach about a restoration of justice and a renewal of the sense of the purposes and value of democratic government.
We can decide that we will provide for the general welfare – protect – and preserve the blessings of liberty – not just liberty, used by corporations and selfish haves to justify their unequal share, as if the naked fact of being free to suffer is enough for everyone else - but the Blessings of Liberty. We can use common sense to assert what those are: many things but first of which must be ourselves, our health, the environment in which we live. Without these, there’s nothing else. They are inseparable from the declared purposes of our country.
In contrast, the economic freedom espoused by the right wing and their logic that this requires government to have its hands off their liberty to try to make money even when this harms the general population is not consistent with our history nor how the founders wanted a government that acted for the people. We ignore this simple concept at risk of losing a habitable planet.
There is no more important act today than that of proper interpretation of the Constitution. It is time to recognize sophistry that distorts what is easily understood otherwise.
The court is now low in the public’s eyes for good reason, one might say. The task of restoration must include re-articulating the arguments that created a dispersed power system, and which were intended to prevent untoward concentrations, as has happened because we forgot this principle. People need to see not just what a violation of our history is occurring, but how it is corrected by restoration of the original intent of the founders of our system of “ordered liberty”. We need to be able to explain to others why “the Constitution is not a suicide pact”. It does not require us to sit on our hands as the irresponsible degrade the very world we need to survive, but it allows us to create sensible rules.[5]
Government is not the problem, as Reagan said, although certainly we have problems in governance we need to address. However, it is now absolutely clear that a failure to value and use government as the founders provided is the problem of our time, and it is hurting us immensely, daily. People gaze in shock and fascination at the destruction of this wrecking crew in power and wonder what we can do to stop them taking what our predecessors worked hard to build for us.
We can all turn to the Constitution, and read it for ourselves, and see how there is an emphasis on science and rights and equality and responsibilities. We can see there the duties of a civil society, and hundreds of years of application has proven we are on a track, through democracy, that can provide the stability of widespread well-being. We can see the purposes and the forgotten parts, like the Ninth Amendment, that affirm the humanity and compassion of the founders and their humane and caretaking goals in creating this government. We can promote their mindset. It is our precious heritage and it is needed now, going forward, to counter the pernicious foolishness of regarding government as "inefficient". The perspectives that justify the current destruction of public services are replacing it with an inhumane world so we must speak up now. We have the right to a government for us and must restore the great gift our predecessors gave to us, that chance to work together for the common good.
[2] See, for example, https://www.britannica.com/topic/Essex-Junto.
[3] Smith, pp. 331 -333. Jefferson had opposed a broad interpretation of the government’s powers while Secretary of State under Washington, while Hamilton had argued that the phrase “necessary and proper” gives Congress wide latitude in carrying out its designated powers. Jefferson clearly acted with that broad interpretation when he imposed the Embargo Act as well as other bold actions he took as president.
[4] https://www.trunity.com/ec-blog/january-18th-2025. The popular historian H.W. Brands summarizes his intent in Founding Partisans: 1. Establish “a political equality among all”. 2. Withhold “unnecessary opportunities from a few to increase the inequality of property by an immoderate, and especially an unmerited, accumulation of riches.” 3. Reduce “extreme wealth” (without violating the rights of property, by the “silent operation of laws”) and Raise “extreme indigence towards a state of comfort”. 4. Abstain “from measures which operate differently on different interests, and particularly such as favor one interest at the expense of another. 5. Make “one party a check on the other, so far as the existence of parties cannot be prevented nor their views accommodated”.
[5] Justice Robert Jackson wrote in Terminiello v. Chicago (1949), that “[t]his Court has gone far toward accepting the doctrine that civil liberty means . . . that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” https://firstamendment.mtsu.edu/article/robert-jackson/
Today we read the news of the dismantling of our public programs that are intended to help the world sustain itself, people to feed themselves, to know when storms and pandemics are coming and take action, to respond to threats (today the NY Times reports on the closing of EPA’s science department, last week it was the Chemical Safety Board and the program that stopped Ebola last time). These efforts were established in fulfillment of the intent of the Constitution. They are consonant with, not a departure from, the original social contract that our founders created for all who would come here. The judges put in place by the Republicans of today raise the banner of original intent. They represent what it means incorrectly. Environmental citizens should salute that original intent, and shun the nonsensical (and recently, inhumane as well) interpretations that are used to try to turn the clock back.
The original intent of the founders was to turn the clock forward, and patriotism requires doing the same: continuing to expand the franchise, the mutual recognition of equality, and build systems based on the common sense of common existence. Madison wanted to use government to keep society roughly equal – economically, not just politically.[4] FDR’s Four Freedoms, for speech and religion and from want and fear, is the same interpretation of the point of government, a similar take on a social contract that makes sense. The original intent of the founders was also clearly to create something that would prevent the excessive concentration of power, rather to keep it well distributed, which would empower the government to protect the whole of society, and not just follow the default of history, to the domination of the excessively self=interested.
These are, as they say, times that try the soul, but it’s the mindset as well as the soul. The mindset needs a reset.
We can restore the original mindset. We can work to renew and restore the original social contract people wanted after they read Common Sense and the Declaration of Independence. We need the mindset that won approval when the Constitution was ratified after extensive public debate in special conventions in what may have been the most dramatic expansion of the free exercise of the electoral franchise in Western history up to that time, about how we take a system of liberty and make sure it also is an ordered and workable system (unlike, say, what happened after the French and Russian Revolutions opened things up just to allow for takeover).
Summing up the entire democratic canon of statements is not easy, but it also not that hard to see that it is a balancing act. We don’t have agreement on lots of things but we agree to work together, and the Union is held together by compromise, when things can’t be worked out, (or dissolves into Civil War), and it is best built by consensus, agreement. Government is best at the local level, so many have said and sought to prove, but the state and federal levels have jobs to do in helping everyone, and there are broad rights and duties that anyone can see that it makes sense for our government to address them. Agreement, not discord, is what built America, and is at hand if enough of those who believe this come together.
The exclusive focus of the Republicans (including some judges appointed by them) on government not interfering with business, even when businesses are destroying the planet we live on, is clearly wrong and we deserve a jurisprudence that does not find ways to avoid this and other basic acts necessitated by reason.
The Constitution cannot be interpreted to mean laissez-faire economics, even if that is the policy in place at the time it was written. It does not privilege business over people. You cannot provide for the General Welfare, an express power of Congress, by ignoring the environment. If the way we think about the Constitution does not clearly include protecting the environment by necessary implication in order to protect the people or their ability to live and/or be happy, it is not possible to make rational sense of what it says.
Not by any fair or plain reading can the Constitution be rightly interpreted to mean women don’t have the right to control their own bodies, even if that was the case back then. It makes no sense and the original intent was for our own laws to make sense. Trying to understand the logic of the conservative jurisprudence we see in the Supreme Court cases I give my students to read can be difficult. Reading page after page rationalizing a result that absolutely appalls my students (and the three regular dissenters) can be a mind-bending exercise.
For example, the “Major Questions Doctrine”, which seems to make sense at first glance. The conservative majority made it up not too long ago. It says that if a regulation is going to have a major impact on businesses, the judges ought to be able to find in the statute that empowers the agency some clear direction from Congress to do that. Otherwise we would have Congresses screwing up innocent businesses all the time, and these are just citizens pursuing their freedom to try whatever they can to get by. Sounds good. But in fact the doctrine has been used to stop EPA from regulating dirty industries, so I ask my students, was Congress clear when it created the Clean Air Act? Did it want EPA to prioritize the ability of coal companies to make money, or the ability of the populace to breathe? To be clear, only ignorance of the history of the environmental statutes could lead to a conclusion that Congress needed to spell things out more to justify acting to discourage dirty industries from poisoning us all.
The Clean Power Plan developed under Obama and then Biden, stymied by the Court in unorthodox rulings, was a model of flexible and intelligent regulation that allowed every state to choose their own path to cleaner air. The conservative jurisprudence that stopped this sensible and necessary act of governance – fulfilling the duties envisioned by the founders of protecting – will be regarded as absurd by future generations looking back and asking why we stopped acting on climate change and other earth-degrading problems, after we had started acting and having successes. They will not be confused, perhaps, as we are, about “original intent”, but may see it clearly as a ruse, and the conservative jurisprudence of this time as a decline in the act and role of public reasoning. Hopefully future generations will also teach about a restoration of justice and a renewal of the sense of the purposes and value of democratic government.
We can decide that we will provide for the general welfare – protect – and preserve the blessings of liberty – not just liberty, used by corporations and selfish haves to justify their unequal share, as if the naked fact of being free to suffer is enough for everyone else - but the Blessings of Liberty. We can use common sense to assert what those are: many things but first of which must be ourselves, our health, the environment in which we live. Without these, there’s nothing else. They are inseparable from the declared purposes of our country.
In contrast, the economic freedom espoused by the right wing and their logic that this requires government to have its hands off their liberty to try to make money even when this harms the general population is not consistent with our history nor how the founders wanted a government that acted for the people. We ignore this simple concept at risk of losing a habitable planet.
There is no more important act today than that of proper interpretation of the Constitution. It is time to recognize sophistry that distorts what is easily understood otherwise.
The court is now low in the public’s eyes for good reason, one might say. The task of restoration must include re-articulating the arguments that created a dispersed power system, and which were intended to prevent untoward concentrations, as has happened because we forgot this principle. People need to see not just what a violation of our history is occurring, but how it is corrected by restoration of the original intent of the founders of our system of “ordered liberty”. We need to be able to explain to others why “the Constitution is not a suicide pact”. It does not require us to sit on our hands as the irresponsible degrade the very world we need to survive, but it allows us to create sensible rules.[5]
Government is not the problem, as Reagan said, although certainly we have problems in governance we need to address. However, it is now absolutely clear that a failure to value and use government as the founders provided is the problem of our time, and it is hurting us immensely, daily. People gaze in shock and fascination at the destruction of this wrecking crew in power and wonder what we can do to stop them taking what our predecessors worked hard to build for us.
We can all turn to the Constitution, and read it for ourselves, and see how there is an emphasis on science and rights and equality and responsibilities. We can see there the duties of a civil society, and hundreds of years of application has proven we are on a track, through democracy, that can provide the stability of widespread well-being. We can see the purposes and the forgotten parts, like the Ninth Amendment, that affirm the humanity and compassion of the founders and their humane and caretaking goals in creating this government. We can promote their mindset. It is our precious heritage and it is needed now, going forward, to counter the pernicious foolishness of regarding government as "inefficient". The perspectives that justify the current destruction of public services are replacing it with an inhumane world so we must speak up now. We have the right to a government for us and must restore the great gift our predecessors gave to us, that chance to work together for the common good.
[2] See, for example, https://www.britannica.com/topic/Essex-Junto.
[3] Smith, pp. 331 -333. Jefferson had opposed a broad interpretation of the government’s powers while Secretary of State under Washington, while Hamilton had argued that the phrase “necessary and proper” gives Congress wide latitude in carrying out its designated powers. Jefferson clearly acted with that broad interpretation when he imposed the Embargo Act as well as other bold actions he took as president.
[4] https://www.trunity.com/ec-blog/january-18th-2025. The popular historian H.W. Brands summarizes his intent in Founding Partisans: 1. Establish “a political equality among all”. 2. Withhold “unnecessary opportunities from a few to increase the inequality of property by an immoderate, and especially an unmerited, accumulation of riches.” 3. Reduce “extreme wealth” (without violating the rights of property, by the “silent operation of laws”) and Raise “extreme indigence towards a state of comfort”. 4. Abstain “from measures which operate differently on different interests, and particularly such as favor one interest at the expense of another. 5. Make “one party a check on the other, so far as the existence of parties cannot be prevented nor their views accommodated”.
[5] Justice Robert Jackson wrote in Terminiello v. Chicago (1949), that “[t]his Court has gone far toward accepting the doctrine that civil liberty means . . . that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” https://firstamendment.mtsu.edu/article/robert-jackson/
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