A Lawyer Looks at the Ham Sandwich

The conservative media spend a lot of time complaining about “activist judges,” who override the will of “the people.” Most of us don’t pay much attention. Arguably, we aren’t paying enough attention, because we don’t unpack these complaints.

By “the will of the people,” conservatives usually mean one of 3 things:

a) what the state’s lawmakers have enacted into law

b) what the state’s voters have enacted by referendum or initiative

c) what pollsters and other public opinion experts claim most people favor.

Overriding the will of the people, as defined here, means:

a) measuring legislation against the state and federal constitutions, and declaring that it violates one or both, and is therefore not valid

b) telling the majority of people that they do not have an unlimited right to trample on minorities

The whole point of a constitution is that it limits the right of the majority to rule. Sometimes the majority is wrong. Minorities have rights too, which are entitled to protection.

What we need, and rarely get, is a 3-layer analysis (like unto a ham sandwich) rather then the usual 2-layer gloss. That is, “activist judges,” and liberals in general, usually believe that

(1)they are protecting

(2) the underdog against

(3) overwhelming and unjust power.

The advocates of that public-accommodations civil rights legislation see

(1) themselves as championing the right of

(2) racial minorities (underdogs) against

(3) business owners (Big Business.)

While conservative business owners, for instance, see

(1) “activist judges” and supporters of public-accommodation civil rights legislation as telling

(2) business owners (themselves) whom they are required to accept as customers.

A lot of US Supreme Court case law on civil rights, and on the rights of criminal defendants, deals with a structural ham sandwich—the right of

(1) the federal courts to tell

(2) the states how they have to treat

(3) criminal defendants or racial minorities.

In all of these situations, everybody is talking about rights and freedoms. But the conservatives are usually talking about their rights to limit the rights or freedoms of some third person(s), although they are rarely willing to admit it. The right of the business owner to decide whom he will accept as a customer, for instance, bears directly on the right of the dark-skinned person to become a customer, even of such crucial goods and services as a room for the night in the only hotel within a 100-mile radius. Whereas the liberals are usually talking about their power to protect those third-person freedoms, and have no qualms about saying so, though they are less interested in discussing the rights of the intermediate party.

In this country, this is a constitutional problem. Elsewhere, it can become a human rights problem. For instance, almost every ethnic or national group that gets liberated from the rule of some oppressor immediately seizes its divinely-given right to oppress its own minorities. Tito made the Yugoslavians “play nice” with each other; his death liberated them to a decade of mutual slaughter. Saddam Hussein did somewhat the same thing in Iraq, until Uncle Sam set his people free. You get the picture.

In short, when somebody lauds the joys of freedom, ask him whose freedom he has in mind, and how its use will affect the rights of third parties. Ask him, in short, to enumerate all parties to this arrangement, and how their rights are affected by it.


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