Welcome Back to the Constitution
Whether we agree or not on recent U. S. Supreme Court
(SCOTUS) decisions, one thing seems to be certain – the majority of Justices
are putting the brakes on MSU (making stuff up). Hot button issues like abortion,
guns, and police conduct are being viewed through the lens of what the
Constitution says instead of what judges and politicians want it to say.
Without commenting on the merits of any of the case
decisions, the trend toward originalism – interpreting the Constitution in the
context of the authors’ intent – does seem to be gaining preeminence in this
season’s SCOTUS opinions.
The Supreme Court is often accused of being politicized and
the truth of the matter is that it has always been so. The recent but quickly
discarded idea of adding to the number of justices so that Biden could make
additional appointments of presumably liberal members. Until settling on the
number nine for the court in 1869 there were several changes and attempts to
change from the original number of six Justices at the Court’s invention in
1790. The notorious effort by President Franklin Roosevelt to “pack the court”
after several of his New Deal plans were ruled unconstitutional was
unsuccessful. Roosevelt did, however, due to his long Presidential tenure, end
up choosing eight of the nine justices by the end of his term.
With lifetime appointments and no history of any Justice
being impeached, the consistency of the Supreme Court’s power has been proven
through the years. The process of selecting what cases get to be heard at this
highest level provides the opportunity for the Court to decide what issues will
be addressed. Earl Warren, serving as Chief Justice from 1953 to 1969, was a
notable activist in selecting cases that had a tremendous impact on the civil
rights movement of the era, including many landmark cases in criminal justice
including granting lawyers to poor defendants, requiring a rights warning
before police interrogations, allowing stop and frisk searches, extended fourth
amendment requirements to state and local law enforcement, expanded
availability of federal lawsuits against police, restricted the use of deadly
force, and others.
SCOTUS 2022 has determined that the 2nd amendment prohibits
the restrictive New York requirements to obtain a handgun, the regulations for
which were intentionally cumbersome to limit the availability of concealed
weapons permits. The decision relied on a broad reading of the right to bear
arms in an originalist sense and cast a shadow on the gun control advocacy
statutes and regulations in local legislative bodies. The majority of states
have loosed concealed carry restrictions, and many have eliminated the need to
obtain a permit in “Constitutional carry” states. In contrast, many local
governments have attempted to enact restrictions within their boundaries.
In a win for effective law enforcement, the Court has
recently upheld cases that maintain the concept of qualified immunity. While
the doctrine is one that was made by court rulings when it comes to use of
force its definitions rely on the 4th amendment understanding of reasonableness,
the standard that has prevailed rather than a standard for perfection and prognostication.
The overturning of Roe v. Wade indicates another turn toward
the Constitution’s framers for interpreting what the document means. Again,
regardless of one’s opinion about the issue of abortion, critics of the
decision have long held that intense scrutiny of the Constitution finds no
explicit right to any medical procedure. Had the Justices wanted to make a
statement on moral or scientific grounds, they would have looked at the “life,
liberty, and pursuit of happiness” rights in our founding documents which
inform originalism interpretation. The original Roe case found an unspoken
right to privacy which the Court then extended to medical decisions. The right
to privacy, like other implied rights that had no ink in the original
documents, has long been recognized, but the link to abortion laws, says
today’s SCOTUS, was too weak to be legitimate.
The ruling does not prohibit abortion, as is being portrayed
by many observers, but rather says that it, as with all matters not covered in
the U.S. Constitution and left to the 10th amendment, is a matter left to the states to regulate or not as
they see fit.
The good news for the citizenry, whether these decisions are
celebrated or decried, is that there is one governmental body that remains
mostly shielded against the knee-jerk politics of the day. Having at least one
branch of the government not subject to the fickle winds of opinion polls is a
good thing.
