Welcome Back to the Constitution

 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.