-  It was depressing to listen to Sonia Sotomayor’s Senate confirmation hearings.  She went to great lengths to convince her interrogators that she would do nothing creative while on the Supreme Court.  That she would adhere strictly to the body of precedent of American law.  Everyone knows that a Supreme Court decision creates the reality of a law as much as an act of congress yet she had to deny that she would ever think that she was doing anything other than carrying out the spirit of the laws passed by her esteemed inquisitors.  Is the law immune and isolated  from creativity at its highest levels?  Our legal system is crying for substantive new ideas.   Sadly, a supreme court judge, the most powerful player in our legal system,  is like a musician in a symphony orchestra.  They read the notes and play the tune.  They are valued for their subtle, knowing interpretation of music created by others.  The musician doesn’t compose the notes – the judges claim that they are not making the law.  Musical composition is risky and messy and full of passion, instinct, ambiguity, uncertainty as is law-making.  Aaron Burr once said:  “The law is anything that is forcefully asserted and reasonably maintained.”  Supreme Court justice Sotomayor claimed over and over again during her confirmation hearings that she does not make the law – she doth protest too much.

1.  Held women in inordinately high esteem that devolved into a patronizing attitude considering women untouchable from their pedestal.
2.  He suffered from PTSD from Revolutionary War battle experience and turned to alcohol to calm the psychic effects.  How did this drinking (every night for thirty years!) effect his judicial decisions that are now the foundations of our way of life?
3.  In marrying his wife Polly when she was only thirteen years old he prevented her from experiencing her adolescence.  She went from childhood  directly to motherhood causing her a lifetime of mental disorders.
4.  His sons failed to thrive intellectually or economically, perhaps due to emotional damage caused by: a. a remote, neurotic mother b. absent, patronizing, alcoholic father.

This is altogether too mean!  John Marshall was a humble, self-effacing man, a great thinker and an all-around very nice, very hardworking person, loved and respected by all who knew him.  He was a high-functioning drunk with charisma.  He was an  American patriot, a founding father for God’s sake!  He was just another privileged, ultra-ambitious mid-level Virginia aristocrat – an entitled white guy with a silver tongue,  a lust for property and street cred as a battle-hardened veteran.  It is unfair to judge a man from a place so far removed from his milieu.  Perhaps, but this man’s decisions negatively effect every person on Earth now.  Thanks to John Marshall, corporations are not accountable for their negative effects on a particular community – they have constitutional immunity due to Marshall’s interpretation of the contracts clause in the U.S. Constitution.   If it is unfair to judge a man in retrospect then it is unfair for his decisions to control so many important aspects of our lives today – fair play.  Judgment works both ways.  If I can’t judge him then he can’t judge me.  Let’s re-examine both ends of the matter.

We now hold  our laws,sacrosanct as they dominate / stifle our culture, from yesterday’s precedent  to the bedrock decisions and Constitution itself. There must be a procedure initiated to review all juridical precedent at all levels.  Every other walk of life has submitted to the re-vitalizing scarification of its conceptual landscape during the twentieth century.  The law shall not escape.  The time has come to empower a legal Picasso or Einstein thus launching an army of legal sleuths, theorists, students, and   practitioners to bring the law into the twenty-first century.  As it is currently practiced, the law, through our state and federal legislatures and current proceedings is like growing more and more branches and leaves on an old oak tree.  This object has reached  its capacity and will soon topple.  All things on earth:   bricks, mortar, trees and storms have a life cycle.  If the dawdling turtle of our cultural menagerie, architecture, can swallow the pill of Postmodernism then so can the law.

-     During the twentieth century the following realms of human endeavor have come to grips with the epochal paradigm shift of 1912 (locus 1895-1920):  Physics, painting, music, dance, psychology, mathematics, astronomy, literature and architecture.  They have all  experienced major revolutions incorporating  the un-pinned station point that released ambiguity, uncertainty, intuition, the primitive and all manner of non-linear, contra-logical thinking that signaled the loss of primacy of The Enlightenment Project.  A project characterized by Newtonian physics, tonal music, rational logic, deductive reasoning and hierarchical notions of organizing thought and measuring the world.  We are now standing impatiently as the globe over-populates and over-heats and economies crumble in archaic eighteenth century manifestations, waiting for our legal system to respond to our global emergency.  The U.S. Constitution and the grand wormy juridical edifice it created must get with the twenty- first century program.  Our legal system has not changed in principal since its formulation in 1789.  Many features have their roots in the medieval.  The U.S. legal system stands wobbling, exhausted and incapable of responding to our current needs.

It is now time to re-think the U.S. Constitution and the entire body of Constitutional law,  philosophy and legal precedent using quantum logic – the logic of Einstein and Picasso, Schoenberg, Freud and Wright.  It is time to blow the soot and cobwebs out of every corner of our laws from edifice to foundation down to the compacted cultural backfill on which the  block stands.  We have banks of supercomputers waiting to be re-assigned from predicting weather patterns to re-thinking our laws.  We can begin by separating the corporation from its rights as an individual.  The Dartmouth v Woodward decision of 1819 was dead on arrival and is due for re-consideration. It is time to re-define the corporation as an entity that must account for its total social / carbon footprint.  To serve is to rule!

While shedding no tears for big, bad  American corporations but how was (then U.S. Senator future U.S. Supreme Court justice)  Hugo Black allowed  in 1938 to pursue his inquisitions given  corporate immunity enabled by Dartmouth v Woodward (1819 – Marshall Court) not to mention the Fifth (self incrimination) and Fourteenth Amendment (due process)  protections.  Senator Black ran these inquiries like Stalin’s show trials happening concurrently (great minds think alike).  Senator Black treated his victims as though they had no constitutional rights whatsoever: freedom from search and seizure, right to a fair trial.  In these inquisitions Hugo Black violated the “most important right of all” – Louis D. Brandeis – the right to be left alone.