Our Tragic Flaw

Judging by the media kerfuffle that has surrounded the normination of Sonia Sotomayor for the U.S. Supreme Court, you might think that there is something at stake here.

And there is, but it's not what is important--not by a long shot.

You see, the conservatives want to arrange the deck chairs over on the starboard side of the Titanic and the progressives want to arrange them more on the port side.

The kerfuffle is not about whether Sotomayor is a capable jurist, which I think everyone is bound to agree that she is. It's all about this port-starboard silliness. But, if the Titanic is really sinking (see Chapters 1 & 2 of my book) then Sonia Sotomayor, conservatives, progressives--the whole lot of them are completely mad.

Actually, the problem is the U.S. Constitution itself. This document runs deeper than deck chairs, to be sure, but not deep enough to cure what ails us. The Constitution is a set of legal principles aimed at the world the founders of this country knew in 1787. It is completely inadequate to meet the most urgent challenges of our time--which, of course, those men had no way of foreseeing.

Imagine that medical science had established certain vaccines two centuries ago that cured most of the worst diseases of that time. Wouldn't we think it perverse if physicians today insisted on using the same vaccines now, especially when a host of new diseases had since appeared that were not treated by any of them? Imagine "strict constructionist" physicians who would argue that the founding set of vaccines were the whole sum of medically valid remedies? Absurd.

In a similar way, the political world is much more varied than two centuries ago, and the stakes are much, much higher. This is a change not only of quantity, but of quality: I argue that we live in a pre-apocalytpic world today--which radically transforms the role of society and the burden of laws. Thomas Jefferson could not have anticipated nuclear weapons, the corporate patenting of life forms, global climate change, or a global economic system that makes British colonialism look merciful.

Under the U.S. Constitution, it is perfectly legal to build and deploy weapons of mass destruction, to commodify all aspects of farming and water delivery systems, emit greenhouse gases to our hearts' content, and grind the global South under the boot of the excessive prosperity of the North. Indeed, it is perfectly legal to work actively to promote such an ecological collapse that human civilization, and possibly life itself, would come to a sudden, gloomy, and ignominious end.

So, this whole argument about Sotomayor is not only a complete waste of time, but in fact a very insidious thing, because it distracts us from the fact that the present legal system is entirely inadequate to the urgent crisis of our time and, as far as we humans are concerned, all time.

Update on Wednesday, July 1, 2009 at 07:12AM by Parke Burgess

I realize upon re-reading this post that I left myself open to the usual charge that it should be the legislature, not the judiciary, that makes laws that reflect emerging realities--such as nuclear weapons, global warming, and so on.

Tis true.

But I am making a different point. We have seen just how difficult it is to, say, ratify a constitutional amendment. And we know that entrenched interests (such as oil and gas, or, worse, the Pentagon itself) will fight tooth-and-nail for the status quo and worse. Against these inertial forces, the political game we play ends up taking little account of the emerging realities that matter most, as I have argued.

I am suggesting that the legal principles embedded in the U.S. Constitution are themselves inadequate to our pre-apocalyptic moment. It seems to me that an adequate document would need to require, explicitly, that long-term ecological sustainability form the very bedrock of all legislative and judicial judgment.

In such a world, Supreme Court justices would be required to apply a sustainability test to all cases, for example. Can you imagine how much better off we would be?

(Of course, this could be achieved by constitutional amendment, and I would applaud and support an effort to make it so!)