Seventy-two years ago Justice Stone authored an Opinion upholding Congressional power to declare certain foods adulterated and thus not to be shipped in interstate commerce. United States v. Carolene Products Co, 308 U.S. 144 (1938). In law’s most famous footnote, Justice Stone also cautioned that while this law was plainly valid, there were circumstances when the Court’s deference to political processes might be limited.

One such circumstance, he noted, could be legislation that failed to account for the interests of those without effective representation in the halls of government:

“whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.”

Louis Lusky: As Stone's clerk, he helped draft Carolene Products fn. 4

The footnote’s cautionary paragraphs did not focus on either the words or the intentions of those who drafted the Constitution, as some insist must be done. Instead, they focused on “the dynamics of government” and “plainly assume the existence of two national objectives – government by the people, and government for the whole people – and focus attention on the Court’s special ability to effectuate them.” Louis Lusky, By What Right? 109 (1975).

Against this background, let’s consider the debate over the construction of a 13-story Islamic Community Center and mosque about two blocks from the World Trade Center site. This center, originally named “Cordoba House” (intended to invoke the model of peaceful coexistence among Muslims, Jews and Christians in Cordoba, Spain during the 8th-11th centuries), renamed “Park51” (its street address), is widely referred to as the “Ground Zero Mosque.”

Polls report consistent majority support for the Muslim’s legal right to build their center where they wish. Some support the project, seeing it as a way to demonstrate respect and tolerance. Others contend its location insults the memory of those killed that day, “like bringing a pig into the Holy Temple,” or putting “a German cultural center on top of a death camp,” or building a “Japanese cultural center across from Pearl Harbor.”

I wonder about linking an entire religion to the acts of the 9.11 terrorists and equating the building of this center with an endorsement of the attacks. Yes the 9.11 murderers claimed to be acting in the name of their religion, but that no more justifies wholesale rejection of Islam than would David Koresh’s conduct in Waco justify wholesale rejection of Protestants. (Indeed a catalogue of acts done in the name of religion that we would all recognize as atrocities would not be brief).

How We Decide coverJonah Lehrer’s book, How We Decide, makes accessible to we lay people the insights neuroscience is gaining through the use of brain imaging technology. Lehrer’s point is that the assumption of rationality versus emotion is wrong – it’s not how the brain works. Rather, our decisions are a blend of passion and logic. The emotional brain combines with the prefrontal cortex and together they move us to action. Lehrer credits Aristotle with appreciating how the rational soul works with emotion “to make sure that emotions were intelligently applied to the real world.”

“Anyone can become angry – -that is easy,” Aristotle wrote.
“But to become angry with the right person, to the right
degree, at the right time, for the right purpose, and in
the right way – that is not easy.”

As Lehrer comments, “[t]hat requires some thought.”

It remains to be seen how the mosque issue will play out. But as we recognize the power that emotions quite understandably play in our group decision-making, perhaps neuroscience has confirmed the wisdom of Carolene Products’ approach. Thus, when we the people face difficult decisions in which emotions are powerfully stirred, the Court’s searching judicial inquiry can help ensure both government by the people and government for the whole people.