I just noticed a Pew poll from earlier this month that had sailed under my radar.  The topic was over how meaningless half of the country thinks the Constitution is.

About half of the public (46%) says the U.S. Supreme Court should make its rulings based on its understanding of what the Constitution “meant as it was originally written,” while an identical share says the court should base its rulings on what the Constitution “means in current times,” according to a survey conducted in October. Public opinion about this issue has changed little in recent years.

It’s not hard to guess which side preferred a particular approach to understanding the Constitution.  This is, to me, the single most important poll that has come out this year.  No other poll has put the most fundamental black-and-white issue that divides this country into such clear terms.

What is that issue?  Whether or not the Constitution really matters.  Think about it.  As long as you have five Supreme Court Justices who will rule the way you want it to based on anything they deem appropriate instead of what the Constitution says, what do we really need the Constitution for?

It shouldn’t come as a surprise to anyone here that I’m an originalist when it comes to Constitutional issues.  I believe that the Constitution was intended to limit the power of the federal government as much as practicable and empower the states and the people to the greatest degree.

I take what the Constitution says literally and I expect the Judiciary to always take the original intent under primary consideration before making any ruling.  To me, progressives who believe otherwise are very frustrating.  They cannot seem to get it through their heads that “rights” guaranteed by a temporary, narrow majority of the Supreme Court instead of the plain text of the Constitution have little of the legitimacy or assurance that the law should provide.  Any such decision can simply be over-turned once one party or the other finally reverses the majority.

The attitude that SCOTUS ought be able to “interpret” the Constitution based on the feelings of the moment is really just a chickenshit way of circumventing the amendment process–which really is how we should be resolving these social issues.

The consequence is that none of these issues really get resolved.  Over 40 years later, we’re still arguing about abortion as if Roe v Wade happened yesterday.  Progressives will always feel that they’re on the defensive on this and that the “right to choose” is always in danger of being snuffed out.  My argument is that you feel this way because you know deep down that nothing in the Constitution really protects a right to an abortion and that the state legislatures should have been allowed to hash this out.  Even Justice Ginsburg agrees with me on that, by the way.

You progressives are angry about how Merrick Garland didn’t get a hearing and then the judicial filibuster was eliminated in the Senate.  you’re madder still that Trump is president, and even confused as to how it happened.  I wonder how well you understand that your side’s own views on the Constitution and the role of SCOTUS brought it all about.

Millions of Republicans like me turned out and voted for Trump, in spite of his severe flaws, because we took him seriously when he said that he would protect the Constitution by appointing originalists like Gorsuch.  Mitch McConnell knew this would happen.  He blocked Garland to make sure we were fully motivated to show up in November.

It worked great.  I’ll even tell you that I don’t feel the least bit bad about what happened to Garland.  Maybe it was a dirty trick, but I strongly believe it was justified under the circumstances.

See, here’s the difference between progressives and conservatives.  When there’s a danger of conservatives dominating SCOTUS, progressives become animated by ideas like protecting abortion and same sex marriage.  It’s far more critical on the conservative side.  To us, the idea that Hillary Clinton would have the opportunity to establish a 5-4 liberal majority on SCOTUS was an existential threat to the Constitution, the rule of law, and the country itself was too real and frightening to allow.   In fact, I already expect that I’ll vote for Trump again in 2020 for this very reason.

We genuinely believed that 2016 was our last chance to preserve the Constitution. Had Clinton won and filled Scalia’s seat with another Kagan and then replaced Ginsburg, Kennedy, and Breyer with more of the same to ensure a permanent majority of activists on SCOTUS, we would be looking at some very drastic measures right now.  At the bare minimum, you’d see loud demands for a constitutional convention of states.  With the GOP’s power in the statehouses, that wouldn’t be an idle threat either.

I’m still not sure that this would be a bad idea.  At least, I think it would still be a good idea to pass a constitutional amendment or two that places some needed constraints on SCOTUS.  My suggestion?  No state statute can be struck down unless SCOTUS rules unanimously to do so.   Federal statutes require a 2/3 majority.  We would have no more of these lousy 5-4 decisions that have torn our society apart on culture war lines.

The only way to make control of SCOTUS a less divisive topic is to reduce its importance and force it to exercise greater restraint, I say.  Won’t happen, I’m sure, but I’ll be satisfied to know that there’s a good chance we’ll have a 6-3 conservative majority by the time Trump is through.  That will go a long way.

15 comments

  1. What bugs me are the liberals who say that the Constitution is a “living document.” Yes, amendments have been added to reflect changes in the law, and to do away with bad or outdated laws. But the amendment process is based on the law, not on what people feel is right at the time. Judges are chosen for their ability to read the statutes and interpret, not remake, the laws some people don’t like. It’s not always a perfect result, but when allowed to work properly, it’s how our rule of law survives, along with the rights those laws allow (yes, I know our rights are God-given, but it’s the judges and the courts that are supposed to make sure we keep them.)

  2. I’m still not sure that this would be a bad idea. At least, I think it would still be a good idea to pass a constitutional amendment or two that places some needed constraints on SCOTUS.

  3. It is an interesting question. People seem to love the constitution until it says something that they don’t like. This happens on the left and the right, but I would agree that the left has been more willing to look at circumventing it. I certainly don’t think that many people find it literally meaningless. I think that “living document” is a stretch, but we don’t live in the 1700’s and they didn’t have a crystal ball. Amendments are crazy hard to get passed so workarounds were always inevitable. Enter the SCOTUS.

    The SCOTUS really doesn’t have as much power as you are ascribing to it. It can’t really create laws, it can only look at cases that are presented to it and make a ruling. Due to the time constraints of nine people, they can only look at so much, usually “big shit”.

    This will come across as controversial on this blog, but state’s rights, while most definitely constitutional, are causing a lot of the issues in this country. I am a fan of state’s rights but I recognize the problem. States (and, of course Congress) have figured out how to play SCOTUS whack-a-mole by constantly passing legislation that is already deemed unconstitutional. There are literally no consequences to doing this over and over. When the country was formed there were a manageable 13 states along the east coast. I am not advocating doing away with states or state’s rights, but gumming up SCOTUS with the same shit over and over should have consequences beyond the same five judges saying “no, sorry”. If states always passed generally constitutional laws the SCOTUS could concentrate on the less obviously unconstitutional laws. There shouldn’t be that many.

    I could turn this around a bit and ask this question. Would any of us move to a state whose charter actually made it immune to SCOTUS appeals and most federal control? This state could literally make your life misery or nirvana by passing anything it wants. You have no civil rights for the most part. The only thing the federal government provides for this state is military protection, system and maintenance on any existing federal infrastructure. You get nothing else from the federal government. You pay minimal federal taxes and whatever the state wants. Tweak the question any way you want, it is just an exercise in put up or shut up. I don’t think that I would. I live in the south and with all of its faults, the weather is nice, the people are friendly and I love Atlanta.

    Could such an “opt-in/opt-out” state exist? How long would it be before people start asking for additional federal services?

  4. It’s not completely meaningless but it was greatly diminished to have it say in plain English that all men are created equal, this destroying a European caste system only to allow slavery to thrive for another 150 years.

    The left wants abortion to be legal and the right wants public schools to be Christian indoctrination, and the right/left are both ignore personal property texts in the constitution.

    The constitution means whatever you want it to mean according to history. I don’t think for a second voting republican for appointments is a vote to protect my rights. I don’t think that you could even say it’s a less gradual erosion with Supreme Court justices.

  5. Long time ago.
    The old crazy half Cherokee half German woman, who was my babysitter/surrogate grandmother at times, had a son, who lived with her. He was a Archaeologist by profession and training. A history buff/ as a minor part of his education.
    I do distinctly remember him saying one time, that if the founding fathers had suddenly came alive and saw America as it was then, they would be out in the woods with guns, rebelling.

    We have strayed so far from what was intended.

  6. That, to me is discussion worthy. What was the intent of the framers? Did they craft the constitution with the idea this document would be enshrined forever or was it in retaliation to what they saw as immediate threats?

    I’ve always personally felt many of the constitutional rules were in direct retaliation to what they saw as the most preeminent threat to the young nation; that America would be subjected militarily or by political subversion to British rule again. They weren’t idiots and they knew that there would be probably great swaths of people that could be blindly led back into the British empire through religious, feudal, or military coercion. Some of the colonies might have just walked the british back in through land deals or if the going hot rough.

    When you think about it in the context of the times they were living in certainly the first and second amendments, even in that order, make total sense. I’ve always thought that the amendment clauses were there to tackle problems in the zeitgeist but the flaw in the design is if an amendment would render a previous constitutional right null and void.

    I think the constitution is a great document that’s caused a lot of prosperity and legal debate but we’re going to hit a wall with it in this century especially with how it lends itself to the digital world.

    Take the first for example. It’s the right to say whatever you want, almost. You can’t threaten, harass, or libel people with speech. Well, that’s not the case with the internet because of anonymity and the borderless arena that the internet provides. The courts haven’t even really addressed this with that much clarity and when they did they’ve tried to apply constitutional thought to it which I just can’t see a way directly applies.

    What can a court do to protect a person from being libeled, threatened and harassed by a group of anonymous trolls, possibly multi nationally coordinating to make your life hell? The cases I’ve read about when viewed through the prism of constitutional protections are very weak.

    And that’s just one example.

  7. That’s easy for me.

    No. I would not want to live there.

    But that’s a great question and I hope that the conservative people on this blog take the opportunity to humor you with a response because I would like to read them.

  8. Kevin, thanks for answering. I, too would like to see what various conservatives envision when they want everything returned to the states and removed from SCOTUS’s jurisdiction. I would also like to know if they really want to live there. I have had people tell me that they want only a military and nothing else “like the constitution says”. I don’t think that they constitution only provides a military and the dollar and I don’t think that most people want to give up all of the services that the federal government provides.

    Realistically, of course, it is just an exercise. I don’t think the “opt-in/opt-out” approach is feasible and neither is an ala carte approach where states choose their services and rights. The problem is that with 50 states in the union, not all of them will want the same things but they will all have to follow along with the choices made by a majority of states. I think that this is closest to my take on how well the constitution is aging. It is still keeping us from an outright dictatorship and it certainly kept us from rejoining the British Empire but it is not holding up as well with more modern problems.

  9. I keep starting to comment on this, re-reading the question, deleting, and starting over before walking away. I’m really not sure where to begin or where to take this.

    The short answer is, yes, I would absolutely like to live in a Missouri that isn’t bound by federal control. I’m not sure how you figure we wouldn’t have civil rights. Prior to the 14th Amendment, the Bill of Rights didn’t apply to the states and citizens still had civil rights. Why couldn’t the citizens of a state agree to a set of reasonable civil rights?

    For the first part of what you said, the issue isn’t that states are passing unconstitutional laws. The problem is that SCOTUS involves itself in cases in which it has no business and has no authority under the Constitution, aside from stretches of the 14th Amendment but always at the expense of the 9th and the 10th.

    You talk about the state passing laws that can make my life good or bad, but why is it any better that the federal government can do this now? Again, SCOTUS only needs five justices to rule on anything that’s brought before them on any grounds they wish. Not only can they interpret the Constitution how they wish, they don’t even HAVE to rule according to the Constitution. I’m not sure how that’s any better than the scenario you’ve laid out.

  10. My answer is largely in line with Thrill’s.

    The Founding Fathers wouldn’t recognize the country they founded as it exists today, whether you think that’s a good thing or a bad thing. The hyper-politicization of everything these days does not bode well for the future, and I think is a big part of the reason why someone like Trump could get elected.

  11. I don’t know if you have read them (I’m going to reread them, last time I did was about 10 years ago) but the Federalist Papers are a good window into at least what some of the founding fathers were thinking when they were creating this sometimes great nation. 🙂

  12. The funny thing about writing vs face-to-face communication is that you can think that you have clearly stated your opinion, question, etc. but later you find that perhaps people aren’t following along with you.

    I was merely attempting to describe zero federal control and a state whose citizens can’t appeal to SCOTUS. This type of arrangement could really only come about as a compromise to outright secession. Such a state could obviously pass laws that provide civil rights but you just aren’t guaranteed the ones from the constitution since you can’t appeal to the SCOTUS to get them if they are taken away. This could absolutely be as good as the federal government but it could also be not as good. Your only redress to grievances that can’t be voted away or addressed in the state court system is to pull up stakes and move. That isn’t necessarily a bad thing, but I have gotten absolutely hammered by people when I say “just move to another state” if they don’t like something.

    I just wonder what a conservative utopia would look like to people. I am resisting the urge to strawman the shit out of this. Use your imagination as to what can happen in a state where there is almost no federal anything. Companies moving there? Disease outbreaks? High or low crime rates?

    Thrill, the state isn’t Missouri it is Montana. You have to move there. I am willing to live in a red state where they had to put stickers in science books (over evolution) and the roads collapse (what infrastructure problem?) for the sunshine, warmth and long growing season for my roses. Priorities.

  13. I don’t know. I feel like you’re trying to get me to make the case for something that’s more extreme than anything I’m suggesting.

    I’m not saying that SCOTUS shouldn’t have the ability to strike down unconstitutional state laws or override state actions. What I am saying is that when they do that, it must be firmly grounded in the Constitution and not by a desire on the justices’ part to set policy, create law, establish new rights which never existed before, or anything else based on the outcome he or she wants.

    When you have four justices on SCOTUS who ALWAYS do this plus a fifth one who will do it if he feels like it, it invalidates the entire Constitution from my point of view. What I do propose is that SCOTUS simply needs a higher standard to be able to do this (unanimous ruling). It won’t eliminate unconstitutional activism, but it can make it more difficult and grant these circumstances more legitimacy than they have with 5-4 rulings that don’t resolve anything.

    A good example of this is the death penalty. Justice Breyer hates it and always votes against anything that leads to a death sentence being carried out. The death penalty is constitutional. Whenever one of these cases comes before the Court, the only legally correct response from all nine justices should be “The sentence is constitutional and due process was followed. We leave this to state appeals court.”

    But that’s not what Breyer does nor do I think the other liberals do either. They say, “Fuck the death penalty. I don’t like it and I don’t want the blood on my hands. No matter what the Constitution says, I’m going to invalidate the state’s law, the jury’s verdict, the findings of the appeals court, and the reviews conducted by state boards and do what I like instead.”

    I’m not saying that I want to not have SCOTUS or even judicial review. I’m saying that I want the judiciary to rule according to the Constitution and the text of statutes, not try to direct national policy from the bench.

    Half of them don’t and that’s why you got Trump.

  14. No, this is fine as a response to the question. I do not wish to paint anyone into a corner but I do like to know how far people are willing to go in search of a libertarian nirvana. I can be very libertarian at times but I do not think of the federal government as a bastion of corruption and states as perfection incarnate. Both are a little of each depending on the state or federal entity. The 5-4 rulings can be somewhat of a joke but that isn’t the fault of the SCOTUS or the concept of SCOTUS. It is a direct result of the hyper partisanship of the day with its litmus tests and political shenanigans. Seriously, it isn’t going to be fixed as long as political vultures circle the near-dead bodies of the justices.

    You should expand on your HOA post to explore governing without checks and balances. Tyranny of the majority is alive and well at the small government level.

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