When Conservative SCOTUS Justices Are Liberal and Vice Versa

On Monday, May 20, the Supreme Court decided in favor of an American Indian man, Clayvin Herrera, in Herrera v. Wyoming.  Essentially, Herrera was found guilty of off-season hunting at Bighorn National Forest.  Herrera believed he had the right to hunt there, citing the Treaty of Ft. Laramie.  The treaty states that the Native Americans can "hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the Whites and Indians on the borders of the hunting districts."

The lower courts in Wyoming convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on "unoccupied" land.  The lower courts did not accept the validity of the treaty.  However, the Supreme Court overturned the lower courts, siding with Herrera and recognized the authority of the treaty despite the passage of 150 years since its signing.

The Supreme Court is currently composed of a conservative majority: five conservative judges sitting with four liberal colleagues.  The liberals, Sotomayor, Kagan, Ginsburg, and Breyer, all voted in favor of Herrera.  Four of the conservatives, Roberts, Kavanaugh, Alito, and Thomas, voted against Herrera.  Neil Gorsuch was the lone conservative siding with Herrera, his vote being the decisive one.

Interestingly, the Court's ruling in favor of Herrera with all the liberal judges favoring the plaintiff and all but one conservative against him seems to position the ruling in favor of Herrera as a liberal one.  CNN.com's headline for the case read, "Gorsuch sides with liberals as Supreme Court rules in favor of Native American rights in Wyoming hunting case."  From this headline, the reader can interpret the issue as a classic liberal versus conservative argument, like those surrounding abortion and immigration.

Yet the issue of honoring the treaty authored over 150 years ago should be a no-brainer for the conservatives.  To the conservative, the dead and the unborn are as much a part of civilization as the living, therefore they have all the same rights and considerations as we, in the present, do.

G.K. Chesterton called this concept "the democracy of the dead."  Chesterton defined this term in the following way:

Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.

Every conservative should have honored the treaty because even though those who authored and signed it are long dead, they are still nonetheless with us here in the present.  We must honor the treaty and treat those who signed it as though they were with us now.  Violating the treaty would actively and legitimately wrong real human beings.

We, in the present, have obligations to both the dead and the unborn.  When we no longer see the dead among the living, we fail to see our obligations to them.  Read Sir Roger Scruton's interpretation of this chain of causality:

The dead and the unborn are as much members of society as the living.  To dishonour the dead is to reject the relation on which society is built — the relation of obligation between generations.  Those who have lost respect for their dead have ceased to be trustees of their inheritance.  Inevitably, therefore, they lose the sense of obligation to the unborn.  The web of obligations shrinks to the present tense.

It was through Thomas Paine's work, The rights of Man, that the dead lost their seat at the table in the present era.  Among Paine's musings, he advocated for the emancipation of the individual from the oppressive ties of tradition, specifically the notion that the dead have any authority over the living:

I am contending for the rights of the living, and against their being willed away, and controlled and contracted for, by the manuscript assumed authority of the dead and Mr. Burke is contending for the authority of the dead over the rights and freedom of the living.

Paine wanted the present generation to live freely, unencumbered by the fetters of the past.

The "Mr. Burke" Paine referred to was none other than Edmund Burke, the first conservative.  Specifically, Paine referred to a passage from Edmund Burke's brilliant and enduring work, "Reflections on the revolution in France":

Society is indeed a contract. ... It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature.  It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection.  As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.

We are not born free and independent, but rather are born into a context built for us by our ancestors. This context is maintained by the complicated web of duties to piety and posterity.

The democracy of the dead is a deeply and profoundly conservative concept, yet most of the conservative judges sided against Herrera.  Additionally, the liberal judges all found Herrera's position favorable, essentially making his position appear as a liberal stance.  This is what made this case so peculiar.

While there are other factors in the decisions of the Supreme Court and the decisions at the lower levels, the essence of the case is predicated on the treaty of Ft. Laramie, signed 1868.  Those who signed the treaty, while no longer living, are still nonetheless present with us.  To dishonor the treaty because the deceased are below the ground is not at all different from abrogating the terms of a contract between the living.

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