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.

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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… Read more »

Zurvan

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.

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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… Read more »

Judge dredd pro se

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… Read more »

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.

Zurvan

the right wants public schools to be Christian indoctrination

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Judge dredd pro se

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… Read more »

kevinmkr

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.

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.… Read more »

Zurvan

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.

balthazar

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. 🙂

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… Read more »

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.… Read more »

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