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.