Supreme Court’s decisions show that US system working
When Benjamin Franklin left the Constitutional Convention, he was asked, “What form of government have you given us?” He reportedly answered, “A republic, if you can keep it.” In a republic, elections have consequences. Certain policies occur and don’t occur based on who wins.
In late June, the Supreme Court issued two opinions that will reverberate for years into the future. Those two decisions were also proof that our system works. Elections have consequences.
Since 1954 and the court overruling Plessy vs Ferguson, and the 1960s when the court applied the Fourth, Fifth, Sixth, and Eighth amendments to state trial and police operations, social conservative southern Democrats and their voter base, when they transitioned to the Republican Party in the late 1960s, learned court membership can change America socially through litigation.
From the 1968 campaign of President Richard Nixon through President Donald Trump in 2016, all Republican presidential candidates asserted to their base that an important issue of the election was the makeup of the court. In every midterm election in which control of the Senate was possible, the GOP told its base to vote Republican to control the court.
In this most recent court term, that strategy bore fruit. Trump’s election and Republican control of the Senate created a 6-to-3 conservative majority on the court. For generations, they have sought justices who would assert
that the scope of rights protected by the Constitution are limited to its text. When that does not provide an answer, the court should consult history and tradition, founded on what was true in 1787 and 1868, as well as judicial precedent. All other rights are solely subject to the whims of the electorate. The crown jewel of this worldview was the overruling of Roe v. Wade.
Abortion, to conservatives, at worst is murder of unborn children, at best is a policy left to the states, not the Constitution. On June 24, 2022, they prevailed. Under the pen of Justice Samuel Alito, backed by four other
justices — three of whom were appointed by President Trump — the court held Roe v. Wade was incorrectly decided. Alito said abortion is a volatile issue that Roe stopped from being debated and regarding the inevitable turmoil of that debate, “It is far better — for this Court and the country — to face up to the real issue without further delay.”
Here is the point; this opinion would never have occurred if Hillary Clinton had won in 2016. Elections have consequences.
As a substantive matter, the court held that at the time of the drafting of the 14th Amendment, the foundation of the right of privacy on which Roe was built, abortion was unlawful in many states. The logic being abortion was regulated in 1868, thus its regulation was not violative of the Constitution then and thus can’t be violative of the Constitution now. The court then asserted, regarding America post-Roe, the decision was never fully accepted and was subject to political and legal attack from its issuance. This, in part, is what separates Roe from the Brown v. Board of Education of Topeka school segregation decision. There is no current legal dispute on Brown, which has become accepted as the law of the land in the last five decades, but there is much on Roe. Since Roe is disputed, its ability to be overturned and returned to the political branches for public debate and resulting elections is more judicially palatable.
On the day before, the court clarified that the Second Amendment, the right to bear arms, was a categorical right, not a substantive right. The court said the right to self-defense is an individual right not requiring government permission to exercise. Moreover, the court held the government could prohibit people from carrying a concealed gun only in “sensitive places” which were historically prohibited in 1787 and 1868. These places included schools, courts and legislatures. The court further rejected the proposition that areas with police presence are “sensitive places” per se. The court said just because police are in Manhattan does not make all of Manhattan a sensitive place. The court held that once the person satisfies basic requirements such as not being a felon, the government has no authority to prohibit the granting a license to carry a gun.
The court has adopted the Republican theory of constitutional law. The theory of a living evolving Constitution has been deposed. There is a new reality the Democrats are faced with due to the membership of the court. The court and legal arguments are no longer a primary avenue to achieve progressive social policy. Elections, now more than ever, have consequences. Which leads us back to Franklin — a republic if we can keep it.