Feb 25, 2024
Feb 25, 2024
We owe much gratitude to these concepts, enshrined by the French Revolution, in spite of the perversion of the principles by some of its leaders. This heinous crime is not the monopoly of the era, or beings of the times. The conveniently selective prejudices of latter zealots have perverted the original meaning over centuries, to further their own biased agenda. Historically, the third estate was deprived of freedom by the crushing tithes and taxes, and oppressed and disenfranchised by the nobility, who sowed the seeds of dissension and internecine conflict amongst the sans culotte due to the weak vacillations of a bankrupt monarch. The desire for freedom from oppression and the demand for equality in taxation and representation, plus the need to develop a unified organized opposition, led to the slogan. Posterity has led to the hijacking and perversion of the original intent, so that capitalists emphasize liberty, the communists harp on equality, and the socialists swear fealty to fraternity.
All these misguided fundamentalists, with biased agendas and closed minds, forget that the intent was an encouragement of unrestrained but regulated talent, given the liberty to pursue wealth and power. Both Madison and Hamilton re-iterate this in an unambiguous manner by their thoughts, words and deeds. Equality, the second word was to engender equality of opportunity, not results and Fraternity, the third word was to create a caring brotherhood amongst people of all ranks, wealth and
intelligence, and not to start an idiotic club of non-reflective freshmen or sophomores. Liberty leads to inequality as Madison so incontrovertibly proclaimed in Federalist No. 10 and inequality is often the death-knell of fraternity. On the other hand equality often leads to fetters on liberty, which is not conducive to fraternity, as the communist experiment of the Soviet Union so amply proves.
Let me take examples of each. First, liberty is not to be confused with license or licentiousness. Using Rawl's theory of justice, it is correct to prohibit the unrestrained proclivities or perversions to harm others, but there is a compelling societal interest to restrain even within the privacy of one's home, certain unnatural behaviors like incest between consenting adults. If one concedes that point, then the privacy clause is superseded. I am no bigoted moralist preaching from a biased pulpit, but a strict legalist highlighting the fallacious manipulation of legal sophistry. I do not have a serious problem with decriminalizing sodomy, just a dread of the misguided basis for it, and the Pandora's box that the method of doing it will open the path of gay marriages. From a purely legal point of view, we should uphold the sanctity and constrictions of the legal contract of marriage and issue restrictive, but not criminal or punitive sanctions on the transgressors. There is not a shadow of a doubt that the transgressing behavior seriously harms the innocent spouse in the matters of adultery. If we are to totally condone errant behavior, then we are creating a seismic shock under
the foundations of society. As Proust phrased it with concise and succinct charm, "Society is like sex in that no one knows what perversions it can develop once aesthetic considerations are allowed to dictate its choices". I do not have a clear answer to this dilemma, for I know that if the matter is left to the states' rights or local jurisdictions, it could lead to legitimizing local legislation like discrimination etc. The Supreme Court could step in on the basis of universal human rights, but I wish to emphasize the un-demarcated fuzzy and murky border between law and morality. While a society should not legislate morality nor moralize law, a wise but not politically expeditious balance must be the desired goal of any legal body, and the frequent five to four Supreme Court decisions bear testimony to the politically partisan and legally bankrupting divisions of this pathetically incompetent and ideologically biased Court.
Now we come to equality. The political and expedient, but schizoid decision on affirmative action based university admissions is a clear example of the court playing politics. It is a mere decoy to draw attention from the even more nefarious rule of giving preference to alumni children, irrespective of their academic merits or scores. The law should guarantee equality of opportunity and not a disguised quota system. The Court was conveniently indecisive by striking down a preferential allocation of points, yet permitting an arbitrary preference on the basis of some imagined high moral grounds and a misconceived ethical authority and conceited vision of a societal utilitarian good. It is the responsibility of the court to interpret the law and the constitution, and refrain from the hubris of being a moral authority. This is an abreaction to its prior and even recent sordid history, of being a handmaiden to vested interests. If it wished to take a righteous stance against the past crime and tyranny of slavery and discrimination, it could have mandated government financed special coaching for black students and a deserved ban on the nepotism of preferential admissions of the children of alumni. This convenient connivance throws serious doubt on the integrity of the Court and brings it down to the same level of disgust and disdain, as the corrupt and crooked Executive and Legislative branches with criminal tendencies...
Lastly, its upholding of the three strikes and out, California law and the inhumane decision to restrict
the visits to prisoners by family members, reveals a lack of humanity and a congenital character flaw due to a deleted or non-functional gene for fraternity or kindness.. A partisan, bickering Supreme Court, without any judicial or principled moorings, is like a pliable weathervane, subject to the whims of the fickle winds of polls and social mores, and is an un-elected tyranny for the people. It is also a dire impediment to the very existence of a true democracy and suitable for a banana republic or a failed state like Pakistan. The next landmark decision should be the people vs. the Brownian movements of the judicial philosophy of the Court!
More by : Gaurang Bhatt, MD