Democracy in Decline? The Supreme Court and the Threat to Public Morality

“It’s time for us to take absolute responsibility for our democracy: if you have a democracy, you need to be engaged and involved.”Mark Fischler

Criminal justice professor and constitutional law expert Mark Fischler does a brilliant job of deepening our understanding of the challenges facing our democracy, our legal system, and our public morality. How did the democratic process and the values it represents — equality and liberty for all — come to be teetering on the brink? Mark illuminates the fact that the Constitution is not a set-in-stone document, but eminently open to interpretation, and explains that its interpretation is a direct reflection of the worldviews of the Supreme Court justices. In fact, the whole process of democracy needs to be aligned with a certain level of development in order to deliver. Mark points out that democracy hasn’t served all of us, and urges us to explore who and in what ways it has failed, that we may work to correct its flaws and continue to uphold and expand the values foundational to democracy to include respecting and protecting the rights of all beings.

Mark contrasts the moral integrity of revered public figures such as Socrates and Dr. King, who honored the rule of law despite that it went against their own self interest, with the disregard for the law so prevalent among political figures today, and points out that democracy can be subverted not only by malicious intent, but also by misplaced idealism—when people feel that supporting a charismatic leader or ideology is more important than supporting the principles of democracy. With regard to the Trump trials, the question arises, is any human above the law? Mark also shares where he finds hope—in his own university students with their openness to a deeper ethical understanding and responsibility and willingness to undertake civic action. Mark urges all of us who care about democracy to become engaged now. His wise, integral, highly informed insights about the current state of the legal system and of democracy, here and around the world, are revelatory, alarming, and inspiring in turn.

Note: This conversation was recorded on May 22, 2024, and therefore does not cover recent decisions from the Court, including the rulings around presidential immunity and the repeal of the Chevron precedent. Stay tuned for a followup discussion with Mark Fischler about these cases in the weeks to come.

Topics & Timestamps: Part 1

Introducing criminal justice professor and integral expert on constitutional law, Mark Fischler (01:32)
The hush money trial: you can’t disengage the politics (03:46)
Is any human being above the rule of law? (06:16)
It was ethical Republicans that got Nixon to resign; now a cult-like status exists in the party (07:36)
How people like Supreme Court Justice Alito’s wife and Justice Thomas’ wife have bought into the Stop the Steal idea, supporting the idea that the 2020 election was false (10:15)
Impeachment is the most direct form of accountability in the Supreme Court (12:50)
Understanding the nature of the current Supreme Court and how the Constitution gets interpreted according to the justices’ worldviews (14:12)
The Citizens United case where the Supreme Court ruled to give corporations the right to freedom of speech (17:31)
The current Supreme Court is hostile to the Union movement, to regulation around land use, to green, pluralistic values—it’s all about protecting individual rights (20:13)
The Constitution is not the solid document we might think, but is very open to interpretation (23:35)
The Federalist Society and the rise of originalism (24:35)
The beginning of culture wars in the Supreme Court and how Supreme Court nominee Robert Borg applied originalism to abortion (29:33)
Selective interpretation of the Constitution and originalist interpretations of the 2nd and 8th Amendments (33:58)
How should democracy be delivered? What we want to see reflected in our interpretation of the Constitution is an honoring of our interconnectivity with all sentient beings (38:19)
The Manhattan hush money case soon going to jury and why it turned into a felony case (40:55)
Does Trump’s motivation to run for president include attempting to pardon his own crimes? Can someone pardon themself? (46:13)

Topics & Timestamps: Part 2

Democracy only functions properly when there is a foundational rule of law, and the moral integrity of Socrates (01:08)
Trumpian politics/political chicanery vs conservative or progressive politics (05:25)
Roe vs. Wade and how we have lost the ability to have a sincere conversation about postnatal care (08:19)
We are suffering as a people from our inability to enter into a dialectic (09:23)
We are not the only democracy at risk: the rise of authoritarianism, populism & demagoguery around the world (12:28)
Is there any precedent for a president to be immune from prosecution? (13:27)
What is an “official act”? January 6th and interpreting if an act is official or criminal (16:41)
Back to democracy at risk: what are democratic values about? (22:19)
How is democracy subverted? (23:54)
Misplaced idealism can undermine democracy and subvert the rule of law (27:23)
Educated citizenry and moving through levels of development to where we recognize the equal dignity of everyone (29:55)
With the internet, there are no consistent, shared news sources, no awareness of civic responsibility (32:52)
We need to own that democracy has not worked for everybody (37:09)
So much depends on our intention: is it about me and mine or the wellbeing of all? (41:13)
What gives Mark hope? Mark’s students and their openness to a deeper ethical understanding and responsibility (43:27)
It’s time for us to take absolute responsibility for our democracy: if you have a democracy, you need to be engaged and involved (44:25)

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About Mark Fischler

Mark Fischler is a Professor of Criminal justice and current program coordinator for the criminal justice and criminology programs at Plymouth State University. Prior to joining the Plymouth State faculty, he practiced law, representing poor criminal defendants for the New Hampshire Public Defender’s Office. Mark has worked extensively with alternative theoretical models in law, constitutional law, and higher education, and has published on integral applications to teaching, being a lawyer, and legal theory. His focus in the classroom is ethics and criminal procedure, and is well respected for a teaching philosophy that emphasizes recognizing the humanity and dignity of each student. Professor Fischler was awarded the outstanding teaching award at his university in 2014. He currently offers a weekly Spiritual Inquiry class through Satya Yoga Studio.

About Roger Walsh

Roger Walsh, M.D., Ph.D., has spent nearly a quarter century researching and practicing in the world's great spiritual traditions. His critically acclaimed book, Essential Spirituality, is a summary of that wisdom, outlining the seven spiritual practices common to the world's major religions.

About John Dupuy

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