Ep. 82 (Part 2 of 2) | Constitutional law expert and criminal justice professor Mark Fischler has a thirst for justice and a gift for teaching. With cogency and passion, Mark explains that law is not the absolute that we perhaps thought, but an ever changing reflection of the values we hold as a society. Law is a developmental process, and will benefit from our own dedication to inner moral development. Mark shows how the law can (and has) become ever more inclusive, with the potential to serve and uphold the dignity of all peoples, all beings. Because of its abstract clauses, there is room in the Constitution to interpret the law in ways that are attuned with our pluralistic society. Mark calls on us to come together and decide what we value as a people—there is no mandate in democracy that all decision making power must reside in the hands of the Supreme Court, which has only had the sort of unilateral power it enjoys today since the 1950s.
This is no dry, legalistic conversation, but a truly illuminating vision of the potential of the law to embody justice, inclusivity, compassion. It is also a solid overview of where we have come from and where we are now, referencing many landmark rulings of the Supreme Court. Finally, this is spiritually inspiring as well—Mark tells the story of the transformational epiphany he had as a young man that led to his career as a public defender, onto the spiritual path, and eventually to become a well-respected, award-winning professor of criminal justice. Mark’s perspective on the law is far ranging, embracing human rights, animal rights, the rights of all beings. It comes from a place of deep care and compassion: “What is the happiness that the Declaration of Independence talks about, what is suffering?” Be inspired by Mark’s wise and knowledgeable teachings and the potential of the law to create a just society for all. Recorded January 4, 2023.
“Law is our collective coming together and deciding what we value as a people.”
(For Apple Podcast users, click here to view the complete show notes on the episode page.)
Topics & Time Stamps – Part 2
- The 4th branch of government: administrative agencies like the EPA that implement policies are now under very specific guidelines from the legislature (01:40)
- Abstract language in the Constitution requires interpretation and the challenge of finding balance between restrictively specific guidelines and abstract directives (06:45)
- The history of the Supreme Court and how the Court is 10–20 years behind the rest of the culture’s center of gravity (09:44)
- The doctrine of originalism: is the Constitution a fixed document? (12:36)
- Ronald Dworkin, primary legal philosopher of his generation: “The law is absolutely an act of interpretation.” (15:55)
- Originalism’s effect on Brown v. Board of Education, the Equal Protection Clause, and Plessis v. Ferguson (16:35)
- Abraham Lincoln was competing with the courts on slavery—his point of view was far more holistic, respecting the equal dignity of all people (20:47)
- We all need to be involved in the determination of fundamental human rights and not leave it up to the Supreme Court (24:24)
- Our Constitution, because of the abstract clauses, allows us ways to start to relate differently to our environment and all beings (26:00)
- The law is a social institution embodying the ways we agree to relate to each other as a society (28:09)
- We need to become conscious that law is a developmental process, becoming more and more inclusive over time (29:18)
- Theories of justice and how to build a just society: integrating Immanuel Kant’s categorical imperative, universalizability, Aristotle’s virtue-based right action, Steve McIntosh’s observable piece, the utilitarian what’s the greatest good for the greatest number, and John Rawls’ justice as fairness (31:59)
- Using Integral to help us apply inclusivity to the law (35:32)
- Animal rights and our relationship to property, to the Earth (37:39)
- Is there a legal way to support people in the pursuit of self-actualization? (43:17)
- What is the happiness that the Declaration of Independence talks about, what is suffering? (46:15)
- Law is our collective coming together and deciding what we value as a people and this requires inner moral development (47:40)
- Peacemaking ethics: care, connection, mindfulness (53:22)
- The collective trance we live in (55:51)
- A call to participate in our democratic process: we can influence our laws, our communities, and make this world a better place (58:34)
Resources & References – Part 2
- Obergefell v. Hodges, 2015 decision to guarantee the fundamental right to marry to same-sex couples
- The Federalist Society, a group of conservatives and libertarians dedicated to reforming the current legal order
- Frederick Douglass, social reformer, abolitionist, orator, writer, statesman
- The theory of originalism is that all statements in the Constitution be interpreted according to the understanding at the time the statements were adopted
- Ronald Dworkin, primary legal philosopher of his generation, advocate of a moral reading of the U.S. Constitution
- Brown v. Board of Education, the Equal Protection Clause
- Plessis v. Ferguson ruling that racial segregation does not violate the Constitution
- Hammurabi’s Code, Babylonian legal text
- Hanzi Freinacht, The Listening Society*, Nordic Ideology*
- Immanuel Kant’s categorical imperative
- Steve McIntosh, co-founder Institute for Cultural Evolution, author, Developmental Politics: How America Can Grow into a Better Version of Itself*, see also Deep Transformation episode #20, Consciousness Evolves, Politics Can Too
- Justice as Fairness, John Rawls and His Theory of Justice (Constitutional Rights Foundation)
- John Alexander, Capabilities and Social Justice: The Political Philosophy of Amartya Sen and Martha Nussbaum*
- Jonathan Rowson, anthology Dispatches from a Time Between Worlds: Crisis and Emergence in Metamodernity*, for more on metamodernism, see also Deep Transformation episode #17, Jonathan Rowson – Making Friends with Conflict, Metamodernity, Construct Awareness, and Other Ways of Facing the Current Metacrisis
