Evil Motive and the US Supreme Court

Last month there was a terrific article in First Things about how theUS Supreme Court is using "evil motive" and "hate motivated"arguments in order to declare certain laws to be unconstitutional. The article is now available online at http://www.firstthings.com/ftissues/ft0406/articles/smith.htm and it is a very sobering read.

To quote from the article:
"It seems evident that the Court's technique is not well calculatedto promote mutual understanding. Let's look first at its effect on the losing litigants is such cases. With its evil-motives discourse,the Court makes it clear to citizens who support an invalidated measure—such as the Colorado Amendment 2 struck down in Romer—not only that they have lost but also that they have masked andmisrepresented their real motive, which, as the Court has discovered,is hatred.

The expressed moral convictions and prudential concerns of these citizens are thus disparaged without any serious engagement or attempt at genuine understanding. Such understanding might jeopardize the ascription of merely hateful motives. It would be inconvenient, after all, to have to acknowledge that the people disfavored by ajudicial decision are not actually as bad as the Court for its beneficial purposes needs them to be.

The parties that prevail in such litigation will presumably be happier with the Court's explanation. But they will not thereby be induced to hold a more empathetic or magnanimous opinion of their adversaries. On the contrary, the human tendency to ascribe evil motives to those we oppose will be, for the prevailing parties, officially confirmed and rewarded. More generally, the Court's approach not only countenances but indeed mandates a discourse of demonization in which adversaries are required to litigate their differences by asserting and withstanding ascriptions of bigotry, intolerance, hatred, and "animus." In traditional logic and rhetoric, the so-called ad hominem argument is typically treated as a certifiable fallacy. But if evil motives become the test of constitutionality, then disputants are not merely authorized but indeed required to trade in just that sort of argument. Robert Nagel notes that a good deal of modern constitutional jurisprudence amounts to little more than thinly veiled exercises in name-calling, as the Justices peremptorily dismiss the positions they disfavor as products of "prejudice," "fear," "antipathy," "irrationality," or "abare . . . desire to harm a politically unpopular group." "[T]o a remarkable extent," Nagel observes, "our courts have become places where the name-calling and exaggeration that mark the lower depths ofour political debate are simply given a more acceptable, authoritative form."

Here in Canada we recently went through an election in which our Prime Minister (as well as most of the media, outside of the SunMedia Group) effectively stated that it was "un-Canadian" to opposeabortion or homosexual marriage, and that those who held these views did so from a motivation of hatred and malice. Considering these arenot only my particular beliefs, but also those of the Catholic Church(and quite a few other Christian churches as well), I found this assertion to be both astonishing, and offensive.


BK said…
This is serious stuff. Consider the following from Stand to Reason:

In April, by a vote of 59 to 11, the Canadian Parliament passed bill C-250 criminalizing the expression of "hate" for homosexuality. The text reads:

"Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of ... an indictable offence and is liable to imprisonment for a term not exceeding two years."

This is just the first step. Svend Robinson, the MP who authored C-250, wants the law to go beyond punishing incitement to hatred to criminalizing the anti-homosexual speech itself. It makes one wonder how an unfettered debate on same-sex marriage will be able to proceed ("All those opposed to same-sex marriage…you’re under arrest").

The thin religious exemption included in C-250 gives Christians little cause for comfort. World magazine reports that…

"…at least one Saskatchewan court has already held that certain Bible passages expose homosexuals to hatred. Even without C-250, London, Ontario, officials recently slapped a Christian mayor with a $10,000 fine for refusing to proclaim 'Gay Pride Day.' A Christian businessman in Toronto was fined $5,000 for refusing to print materials for a gay-rights group."

====end quote=======

Layman said…
Here is the irony.

Liberals attack the concept they label "original intent" at least in part because they say you can't figure out what the original intent was. Yet when it comes to finding the original intent in such jurisprudence as Nomad points to, they have no problem doing so. What is shocking is that polling data is playing an increasingly important role in such determinations.

Here is another irony. Scalia and Bork, often accused of espousing "original intent" actually espouse no such thing. They argue for "original understanding." That is, a law should be interpreted to mean what the pertinent community at the time understood it to mean.

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