Lifetime Judge Appointments and Relativity
Nathaniel Bates, History Editor
Genre: Humorous take on the philosophy of law
The Constitution is very clear. Federal Judges are appointed for life subject to their “good behavior.” This has been interpreted to mean that they can be impeached and some have been. Yet, most Federal Judges serve their terms with no democratic input. This means that even such questionable decisions as Dred Scott, Plessy V. Ferguson, Kelo v. City of London and the Citizen’s United Decision have stood as “decisis” for long periods regardless of the wisdom of those decisions. For lawyers, Supreme Court decisions become a kind of secular religion that even skeptics who doubt miracles, telepathy and “States that wither away” still subscribe to as against the meddling of the populace. It is not simply liberals who cling to the fiction of the All Wise and All Powerful Father on the Bench. The doctrine of lifetime appointments as a check on popular democracy began among eighteenth century conservatives, after all. Gilded Age legal doctrines giving personhood to corporations, seen by democratic America as a kind of legal Frankenstein, were generally imposed from conservative Judges and did not emanate from more reform learning legislatures. However, like most opiates of the intellectuals and the business class, consent becomes manufactured in much the same way that wars are manufactured, by media presentation and use of the education system to convince Americans of the wisdom of the given state of affairs.
Then science comes in to the picture, even complicating things with its blasted “reason” and “questioning.” Critical philosophy is bad enough, but when Relativity and Einstein come in to the picture, dag’ blast we know that assumptions will be questioned! To be clear, there is nothing in the theories of Special or General Relativity stating the all Judges should be elected, particularly under the current system of bought-and-paid-for elections. This writer is not suggesting that. What is being suggested is that all doctrines are subject to question. In particular, legal doctrine should not be left out of the great philosophical revolution unleashed by Relativity and Quantum Physics. Physicists and philosophers who study these fields vacillate between Positivism and various forms of Realism, much in the way that legal philosophers vacillate between relativist and absolutist/platonic doctrines of law. Yet, legal scholars are far more conservative in their speculations than philosophers of science. Even the “living Constitution” doctrines of the early twentieth century never seemed to go as far as to invoke Einstein (to my knowledge). Let me be the first to directly do so here, without pulling punches or without equivocation.
Our system of lifetime Federal Judges is heading for a possible disaster should what is currently considered science fiction become living reality. For one thing, life extension technology could accelerate to the point at which the human lifespan of wealthy and powerful elites extends in to hundreds of years. This possibility is frightening enough for many, but when we talk of “lifetime appointments” then we literally have the prejudices of one century binding the next. It would be as if we had Justice Roger Taney deciding on modern issues of Civil Rights today. And yet, even without life extension technology, Einstein’s time bending discoveries on Relativity could create such a scenario should space travel at speeds near those of light become a reality. A bigoted Federal Judge could be launched at a speed near that of light toward the star Vega, a vacation for him, and also a vacation for the nation. Yet, he would return to our country in some time frame exceeding 52 years without having aged terribly substantially. Let us say he returns in 65 years. By my admittedly history major-esque liberal arts calculations he would only have aged 39 years while the country aged 65 years. If I am incorrect, I hope that engineering majors will excuse my fuzzy math and Occupy Wall Street sympathies. The point is that he would not have aged as much as the country would have aged. This would make him old, frustrated, unsexed for the last 39 years. He would certainly be ready to impose his prejudices on a nation that had not seen them for 65 of our years. He would live long, perhaps enjoying life extension technologies as they further evolved.
The closer we come to perfecting near light speed travel, should we overcome such currently accepted barriers as the tremendous energy required and other constraints that lead physicists to think that 10% of the speed of light may well be our limit, the worse this problem becomes. A Judge who comes back to Earth from a centuries long absence will definitely be out of place in what we hope will be a more egalitarian and just future. Lifetime appointment is, after all, lifetime in nature and not necessarily limited to eighty years. No limits are placed on that. What is science fiction at this point may not be in the centuries ahead. Trusting in the inherent goodness of the current system to correct itself without popular input is trusting in what most certainly would be a broken reed.
Thomas Jefferson feared the idea of lifetime judicial appointments. As Thomas Jefferson pointed out, the Earth belongs to the living. This is the legacy he left us. Even the limitations of Jefferson’s own radical democratic vision, his refusal to see a multiracial democracy as possible even as he cautiously looked forward to the end of slavery, must be seen in the light of his own awareness of his own tragic limitations. He was one Enlightenment philosopher among many in his own mind, which is precisely how he would want us to view him. His words were not doctrine. Jefferson’s primary criticism of the Federalist plan for lifetime appointments was precisely where he dissented from the idea that law was Platonic in nature, something to be handed down from centuries ago. This writer does not completely go along with all of Jefferson’s legal reasoning, in particular his total dissent from the idea of Common Law. At the same time, Common Law should be an evolving area of legal reasoning, not a body of doctrines that are frozen in time.
To note, further paradoxes around the idea of lifetime appointments arise when we go beyond Einstein and consider the possibility suggested by some Physicists of time travel and parallel Universes. Should a Federal Judge who travels back in time from the future to a time before his or her appointment be considered a standing Judge? On the one hand, he travels to a time before his appointment but on the other hand if he does not sit on the Bench then one will be violating the Constitution decades or centuries down the line. What of Judges from parallel Universes in which the United States has the same Constitution it has today. Would we want to disrespect the Constitution even if the United States being considered is one in a parallel Universe and refuse to seat a Judge from such a Universe? What if the United States in this parallel Universe included the State of Liberia, which decided to join the United States as a State? A Federal Judge from Liberia would not be a citizen without undergoing naturalization, and yet he would be a natural born citizen if she came from such a parallel Universe. She should even be able to run for President as a native born American if the country did not consider her soft on crime or too empathetic.
Our legal doctrines will undergo severe challenges as the future comes. We had better be prepared for a future in which the elite rich will have a lot of technology at their disposal, including “transhumanist” technologies of lifetime extension. They may also have technologies of space travel that are as yet not discovered. It is not a certainty that humanistic and democratic values will survive in to such a technocratic capitalist future. The signs are ominous at this point. The idea that an eighteenth century set of assumptions will be enough to allow for the human dignity of the human being to survive in to the future is one that the overwhelming majority of conservatives accept in the form of Original Intent. Yet, it is also accepted by what appears to be a plurality of liberals in the form of a legal realism that is presentist in nature. The fact is that if we do not learn history critically, it will be doomed to repeat itself uncritically. The mistakes of the past can repeat themselves in the future. Those mistakes could include feudalism, slavery, and degradation. The failure to consider the revolutions in science and philosophy in our understanding of law, in particular the anti-elitist thrust implicit in the idea that space-time appears different to different observers, then we will fail ourselves as a civilization and a species.
Yes, this essay was somewhat tongue-in-cheek. However, part of my reason for having tongue in cheek is to protect my wisdom teeth from being removed by an unwise consumerist culture that does not value them. Whether this is a joke or a serious statement I leave to you. Einstein would have laughed. Would Scalia?
(Also check out Nathaniel’s short story Gödel Loop )
