March 30, 2016

In modern constitutional battles, its often 1984, not 2016

By J. David Breemer Senior Attorney

My son is currently reading George Orwell’s classic dystopian novel, 1984.  As many of you probably remember, the story is about a society subject to pervasive government control and monitoring and one person’s (Winston Smith) attempt to escape that control through small acts of personal rebellion. Family and love are discouraged because they create loyalties that threaten to undermine and override one’s faithfulness to the State- represented as “Big Brother.”  Independence is dangerous because it can lead to “Thoughtcrime” – thoughts that question the State’s goals and decrees. Those guilty of Thoughtcrime are subject to arrest by the Thought Police. Its a grey, conformist society. Everyone is equally miserable.

Winston Smith’s growing disenchantment with Big Brother and his quest for a slice of individual autonomy drives the story, but the most striking underlying theme is the State’s ability to manipulate language and history to get citizens to treat lies as truth. The idea is reflected in the concept of “Doublethink.” The novel defines this concept as: ” to hold simultaneously two opinions which cancelled out, knowing them to be contradictory [but] believing in both of them” or  put another way, “the power of holding two contradictory beliefs in one’s mind simultaneously and accepting both of them. . .To tell deliberate lies while genuinely believing in them . . . .”

Perhaps the most memorable examples of Doublethink in 1984 are the Party’s slogans: War is Peace. Freedom is Slavery. Ignorance is Strength.

Orwell was prescient in recognizing how governments might employ and promote Doublethink  to control every facet of society. But (unfortunately) he did not see just how far it could go. That privilege is, however, regularly experienced by those of us who engage in constitutional litigation against the government. In the battle over constitutional rights, it is common for the opposition to call black, white and white, black – with apparent full belief in the truth of the contradiction.  Constitutional litigation affords a front-row seat to the full range of Doublethink possibilities.

Consider the concept of equal protection of the laws, enshrined in the Fourteenth Amendment to the Constitution. In line with thinkers like Martin Luther King and Frederick Douglass, PLF attorneys read the equal protection concept as a prohibition against government discrimination based on immutable characteristics, such as skin color.  The government must not favor or disfavor people based on race.  Equal protection of the laws means application of the law without discrimination.

This is often too simplistic for the government. In Coral Construction v. City and County of San Francisco, for instance, a white contractor claimed the City violated the California Constitution by passing a law that awarded construction contracts partially based on skin color, with white contractors being granted less favorable treatment.  Article I, Section 31, of the state constitution specifically bars the government from giving preferential treatment to some, and less favorable treatment to others, based on skin color.

Incredibly, the City pointed to the Equal Protection Clause to defend its law. It asserted that equal protection meant it was required to discriminate. In the City’s words, it was “in direct obeisance to the Federal Constitution that the [City] board enacted” the ordinance favoring certain minority contractors, and disfavoring others of different races.

Discrimination is Equality.

Alas, the government does not reserve its Doublethink defenses only for equal protection cases. It is just as adept in property rights cases. Indeed, it is now standard for the government to argue that it should be exempt from paying compensation when it takes private property, as required by the Fifth Amendment to the Constitution, because it is really giving the victim a benefit.

This argument was most recently on display in the case of Horne v. US Department of Agriculture. There, the United States confiscated approximately $500,000 worth of a raisin grower’s crops. When sued for compensation, the United States argued that it shouldn’t have to pay the grower for the taking of the raisins because the action really helped him out.  By taking the raisins, the government claimed, it helped limit the supply of raisins and therefore boosted the price of the raisins the grower would sell later.

Taking is Giving.

In 1984, Orwell said that freedom is the ability to say and believe that 2+2=4.  In the United States, constitutional freedom is the ability to believe that words meant to protect liberty actually require liberty. Equality must mean equal treatment and a taking of property must be a taking. When we lose that reality, when concepts of individual liberty come to mean their opposite,  the mass of people will agreeably bow down to Big Brother without even knowing it. And for holdouts, all that will be left is Thoughtcrime.

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