Wednesday, October 28, 2020

“Outmoded,” “Inevitable,” And “Here To Stay”

     Imagine along with me, if you please.

     There is now a 5.5 to 3.5 conservative majority on the Supreme Court. (I refuse to count Chief Justice John “Oh, let’s call it a tax” Roberts as a conservative; he votes sensibly about half the time at most.) Some cases come before the Court that bear upon the soundness of prior Court decisions:

  1. Abortion “rights;”
  2. Same-sex marriage;
  3. Right to keep and bear arms;
  4. Legislative superiority to regulation;
  5. Preferential treatment by race and / or sex.

     Constitutionally faithful Justices would rule that:

  1. There is no Constitutional guarantee of a right to abort an unborn child;
  2. The Constitution does not grant the federal government authority over marriage;
  3. The right to keep and bear arms is explicitly protected by the Second Amendment;
  4. Regulators may not go beyond the bounds of the authority granted them by legislation;
  5. Preferential treatment violates the Equal Protection clause of the Fourteenth Amendment.

     Those decisions would flow directly from the plain text of the Constitution. If rendered as I have indicated, they would overturn three prior Supreme Court decisions and reinforce two others.

     The Left’s flacksters would find themselves arguing in two incompatible fashions. Concerning topics 1, 2, and 5, they’d scream about stare decisis and how “unfair” it would be for people accustomed to the associated “rights” to be deprived of them. But on topics 3 and 4, they’d bang a quite different drum: the constraints associated with those subjects are “outmoded,” their modification in favor of greatly expanded powers for the regulators in the alphabet agencies “inevitable.”

     The Left’s screaming would be equally loud in both directions. But whom would it persuade? The media, at least as presently constituted, would be on the Left’s side. But what would that amount to, in the currency of influence over the Court’s decisions? How would it affect the degree of respect shown to the Court by the other two branches of the federal government?

     The question is both immediate and imperative.

     The judicial branch of the federal government was once called “the least dangerous branch,” owing to its inability – by design – to enforce its decisions. Its power, if that word be appropriate in this context, arises entirely from the respect shown to it by the other branches. But that respect is not a guaranteed-never-to-elapse state of grace. Indeed, in at least one other case of historical import, the executive branch has ignored a Supreme Court decision:

     Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.

     The opinion is most famous for its dicta, which laid out the relationship between tribes and the state and federal governments. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States....

     In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" This quotation first appeared twenty years after Jackson had died, in newspaper publisher Horace Greeley's 1865 history of the U.S. Civil War, The American Conflict. It was, however, reported in the press in March 1832 that Jackson was unlikely to aid in carrying out the court's decision if his assistance were to be requested. In an April 1832 letter to John Coffee, Jackson wrote that "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." In a letter in March 1832, Virginia politician David Campbell reported a private conversation in which Jackson had "sportively" suggested calling on the Massachusetts state militia to enforce the order if the Supreme Court requested he intervene, because Jackson believed Northern partisans had brought about the court's ruling.

     The Court did not ask federal marshals to carry out the decision.[9] Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce.[10][11]

     Most tellingly, even though President Jackson and the executive authority of Georgia refused to enforce the Court’s decision, Worcester v. Georgia has become the foundation for legal relations between the Indian tribes and other governments in the United States. But that degree of ongoing deference to the probity and wisdom of the Court is not guaranteed. Indeed, a succession of inane (not to say insane) decisions by the Court could erode respect for it to nothingness.

     Certain decisions of recent vintage – e.g., the ones associated with topics 1 (Roe v. Wade), 2 (Obergefell v. Hodges), and 5 (Grutter v. Bollinger) in the opening segment – have already begun to erode it.

     The counterpoise of the judicial branch to the “political” branches has come into question in recent decades. It’s been debated whether it’s still possible to maintain a truly independent judiciary in these hyper-partisan times. The question is a good one, especially in light of the recent upsurge in the use of violence and threats thereof to intimidate courts into delivering verdicts favorable to an activist mob.

     Ironically, it’s also controversial for a judge or Justice to proclaim himself an originalist or a textualist. Those positions, once regarded as the only respectable stances for a trustworthy jurist, have been condemned – from the Left, of course – as contrary to all manner of contemporary “values.” Here’s an example, provided by a United States Senator:

     Sen. Ed Markey (D-Mass.) on Monday lambasted Senate Republicans for their full-throated support of Judge Amy Coney Barrett, a religious conservative and President Trump's nominee to the Supreme Court who is expected to be confirmed by the end of the day.

     "Originalism is racist. Originalism is sexist. Originalism is homophobic," Markey tweeted Monday. "Originalism is just a fancy word for discrimination."

     Needless to say, the Dishonorable Senator Markey would prefer that the Constitution be treated as a “living document:” i.e., one with no fixed meaning. Such an attitude would transform the Supreme Court into yet another political body, subject to the ebb and flow of popular sentiment and the influence of activists. It would also eliminate the Constitution’s constraints on government...which, should the Left regain power, enable it to impose a never-ending, all-powerful tyranny upon these United States.

     I’ve cited this passage from Shadow of a Sword on several previous occasions, but I feel that I must do so again:

     “Miss Weatherly,” Sumner said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
     “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
     “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
     “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

     Is the desire to know what the law is “outmoded?” Is it “inevitable” that, should the Left ever again dominate the federal government, we will lose all hope of objective and unchanging law? Or have we already fallen into that terrifying abyss – and if so, are we “here to stay?”


Michael Stone said...

Given that there are so many laws, at the federal, state, county, city levels, that we don't even know how many we are subject to, never mind what they actually say, I'd say we're WAAAY down that abyss...

S Richard said...

Deo Vindice

Andy Texan said...

The Supreme Court is totally compromised. I think court packing is a good idea. It should have 350 million justices and the voting would once again mirror popular will instead of the Deep State will. Why in the name of Sam Hill do we need a council of nine Elders to settle our arguments?