The Coup, the Court, and the Constitution

It's all about that revered document written 235 years ago

Personal note: I returned last week to the terrarium known as Southwest Florida after 3 weeks in New Mexico, and was greeted by a flurry of business and personal tasks. I will be posting weekly newsletters again beginning with this one. “Friday Night YouTube Music” will return in the near future.

July 4, 2022

The Constitution

July 4th is the day the nation traditionally commemorates the signing of the Declaration of Independence that gave our incipient nation its fundamental creed- belief in the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. Given recent events, however, this July 4th may be the appropriate time to reflect also on the significance of the US Constitution. Ratified 233 years ago, the Constitution remains the rosetta stone of American democracy, the foundation upon which our society of laws is built. The fact that it is long on principles and short on details made it subject to incessant interpretations by both those who enact and enforce the laws (the Congress and the Executive) and those who decide if these laws are “constitutional” (the courts). At its inception, it was peppered with flaws, the consequence of its drafters’ desire to completely replace the existing Articles of Confederation with a stronger, more effective central government. This led to a series of compromises intended to secure ratification from recalcitrant states. Accordingly, an enticement was offered to the Southern states in the recognition of slavery (“the three-fifths compromise’); to smaller states that feared being made subordinate to the more populated states by the creation of a bicameral legislature (the House is elected on the basis of population while each state was represented by two senators regardless of population); and, to calm the fear of popular government by the wealthy classes, the Electoral College scheme for choosing the President was concocted.

Such compromises and considerations made for unintended consequences. For example, not only did women play no part in the drafting of the Constitution but they are nowhere mentioned in it. And while the drafters realized there might be a need in the future for changes to the original text, the Amendment process (Article V) is a heavy lift. It took 130 years until the 19th Amendment gave women the electoral franchise. The first 10 amendments (‘the Bill of Rights”) were rapidly enacted 2 years after ratification- the result of a bargain struck with certain states to ensure ratification- but, in the 231 years since, only 17 were added.

The other cumbersome feature of the Constitution is its language, contemporaneous with the time it was written. What are we to make, for example, of the phrase “a well-regulated Militia, being necessary to the security of a free State” in the 2nd Amendment? Does it refer to an individual right, or to the right of states to maintain an armed force of citizens to deal with, among other issues, the illegal use of force by the Federal government? Besides such ambiguities, there are omissions of detail that have often been filled by practical precedent: the concept of “the peaceful transition of power” is one.

For the country to remain dedicated to “the rule of law”, it requires both citizens and government officials to act in good faith. What is not specified in law depends on historical norms and precedents. Though unwritten, these must remain as principles. Note that Britain, which has no written constitution, is still governed by “constitutional principles”- parliamentary sovereignty, the rule of law, democracy, and upholding international law.

We could take a lesson from the Brits.

The Coup

Like many, I anticipated that the televised hearings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol would be another performative display of self-aggrandizement by the members, with a dearth of serious fact-finding. I felt the lure of a national audience and TV cameras would prove to be an irresistible temptation. Expecting a re-run of the Benghazi hearings, I was proven wrong. The Select Committee has been very organized and disciplined, with the questioning of witnesses during each session limited to Chairman Benny Thompson (D-MS), Vice-Chair Liz Cheney (R-WY), and one other member. Mixing video clips taken from depositions with live testimony, the Committee is presenting a coherent story, namely that the events of January 6 were not a spontaneous riot, but the result of an orchestrated effort by then-President Donald Trump, assisted by cronies, to remain in office despite losing the 2020 election.

They are succeeding in getting this story across.

The takeaway is that Donald Trump betrayed his oath, acting not to uphold the Constitution, but to circumvent it. He tried using the courts to challenge the election result in the so-called battleground states, a legitimate but baseless effort (there was no fraud). He then involved himself in several schemes to bypass the Electoral Count Act of 1886, either by sending illegitimate rosters of electors from battleground states or by having Vice-President Mike Pence discount some of the certified electors from those states. With that approach stymied, he incited the mob attack on the Capitol in the hope of interrupting the official counting of electoral votes by the joint session of Congress over which Pence presided.

Trump instigated a potential constitutional crisis, circumventing both the law and historical precedent. He refused to take part in the normal transition process and to attend the inauguration of Joe Biden. He defied the constitutional order that has made American democracy, for all its warts and unresolved problems, the longest-lasting in the world. As esteemed conservative Judge Michael Luttig wrote in his prepared opening remarks prior to testifying before the Select Committee:

Those who think that because America is a republic, theft and corruption of our national elections and electoral process are not theft and corruption of our democracy are sorely mistaken. America is both a republic and a representative democracy, and therefore a sustained attack on our national elections is a fortiori an attack on our democracy, any political theory otherwise notwithstanding.

Accordingly, if, and when, one of our national elections is actually stolen from us, our democracy will have been stolen from us. To steal an election in the United States of America is to steal her democracy.

Today, America is in constitutional crisis -- and at a foreboding crossroads with disquieting parallels to the fateful crossroads we came to over a century and a half ago.

The Court

With a 6-3 conservative majority, decisions favoring conservative and libertarian positions should not surprise any observer of the Supreme Court, but the extent to which their decisions in the recently-concluded term were based more on ideology than jurisprudence was astonishing. The conservative Justices seemed hell-bent on going beyond judging the law through interpretation of the Constitution to actually making the law. This is an agenda-driven Court: the will of the People as expressed in the laws enacted by their elected representatives is being disregarded, as well as prior decisions of the Court itself.

As an example, take the case in which the Court reversed 1973’s Roe v. Wade (Dobbs v. Jackson Women's Health Organization). Justice Samuel Alito, who authored the majority opinion, considered the right of a woman to choose to have an abortion as “unenumerated” - not specifically mentioned in the Constitution- and thus not a protected right. Of course, his thinking ignores this clear statement in the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In two cases that challenged the 1st Amendment’s prohibition of established religion (Carson v. Makin and Kennedy v. Bremerton School District), SCOTUS sided with the plaintiffs, again with a 6-3 vote. In Carson, the Court ruled states that subsidize private schools must include religious schools, too. Kennedy, concerning a high school football coach who led players in prayer on the field, was presented as a 1st Amendment issue by the majority. A strong religious bent seems obvious in the majority: 5 of the 6 are Catholics and Neil Gorsuch, an Episcopalian, was raised Catholic.

This is an activist Court, with 5 of the Republican appointees having been groomed for their roles by the conservative Federalist Society. They are choosing to see the Constitution through the twin lenses of ideology and theology rather than actual judicial diagnosis. They seem determined to eradicate any vestige of the American social welfare state that began with the New Deal. Look to the final decision the Court handed down last week, West Virginia v. Environmental Protection Agency, where the Court restricted the EPA from regulating greenhouse gas emissions from power plants. This is a “major issues” case, where the Court is ruling that an administrative agency is precluded from making rules and regulations that have a serious economic impact without the specific direction in law by Congress.

How far will the conservative majority go to take American society back to the 19th Century? If the opinions of Justice Clarence Thomas hold sway, issues such as same-sex marriage and access to contraception could be on the judicial chopping block. Our system of checks and balances no longer works: if it were effective, the two elected branches could rein in a run-away court. The current Court is taking advantage of the void in political power to remake our society.

It may not be for the better.

The hard thing is going to be predicting when this new body of administrative law, this major-questions doctrine, is going to apply and when it isn’t… But the question is, who decides what’s normal and what isn’t? And I think that one of the major criticisms of this approach is that basically that’s left to the Supreme Court, and it’s normal when they think it is, and it’s “extraordinary” when they think it’s extraordinary… And it’s not rooted in a particular theory of constitutional law.

-Michael Wara, of the Stanford Doerr School of Sustainability, in The Atlantic

So, let me get this straight -- a law written 50 years ago doesn't apply because regulating CO2 is too different. But an amendment written 240 years ago for muzzle-loading guns absolutely applies to semi-auto guns with 50-round magazines. They're just making shit up. -Dr. Ben R. Hodges @H2odges Jun 30

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