The most recent Supreme Court decisions to make the national news have me thinking very rosy thoughts. Possibly they’re completely unrealistic ones, but at least they’re a change from my usual grumblings over “government” in these United States. All three — Bruen, Dobbs, and Kennedy — upset a significant Leftist applecart, which the Court is not known for doing casually. And all three are based on original-intent / original-interpretation Constitutional jurisprudence.
Could President Trump’s three SCOTUS nominations be the Constitutional lifesaver we in the Right have been waiting for?
Let that thought tickle you for a moment or two as I struggle to put my thoughts into comprehensible order.
The expansion of federal power that began under Woodrow Wilson and accelerated under FDR was largely founded on two phrases found in the Constitution and one word that isn’t there. Let’s look at each of them in turn.
The first portentous phrase, which appears in Article I Section 8, is “the general welfare.” The phrase has been interpreted to mean “Congress can do whatever it thinks will make things generally better.” Needless to say, if the Founding Fathers intended Congress to have unbounded authority to legislate on any and every subject imaginable, there would have been no reason to enumerate the seventeen legitimate legislative powers that appear in that Section. But as with most things that are “needless to say,” saying this, over and over at the top of one’s voice, has become imperative in this era of heedless, thoughtless nonsense.
The second phrase is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This one has been abused so brutally that virtually no one is aware of the Founders’ original intent. “Commerce,” then as now, meant the process by which goods are bought, sold, and transported. It did not and does not embrace all productive activity. Moreover, a reading of the Federalist Papers elucidates the intent behind “regulat[ing] Commerce…among the several States:” preventing the erection of tariff barriers and other impediments to commerce that crosses state lines. That Congress has become the principal impediment to such commerce is an irony lost on far too many.
The third item, the “word that isn’t there,” belongs in the Tenth Amendment, which currently reads thus:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Had the Founders anticipated the greed for power of later politicians, they might have written:
The powers not explicitly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
For later Courts would casually accept the notion of “unenumerated powers,” particularly in “emergencies.” (One of those “unenumerated powers,” Congress’s assertion that it can delegate its lawmaking powers to unelected executive-branch bureaucrats, is the subject of West Virginia et al. v. Environmental Protection Agency, which the Court is poised to decide quite soon.) This directly contradicts James Madison’s statement that the powers of the new federal government would be “few and defined:” the rationale under which the state governments were persuaded to ratify the Constitution.
Quite a lot of agony has come from two phrases and one missing word. But an originalist majority on the Court could salve the wounds rather nicely.
But how likely is it? As I said at the outset, the most recent portents give us cause for hope. However, it must be remembered that no Justice pledges his fidelity quite so much to the Constitution as to the Court itself. It’s a body with immense power, and like most powerful agencies it will tend to act in its own interest when possible.
The five originalist-leaning Justices on the Court:
- Clarence Thomas,
- Samuel Alito,
- Neil Gorsuch,
- Brett Kavanaugh,
- Amy Coney Barrett,
…can’t help but be aware of the attention on them at this time. A lot of that attention is threatening: the Dishonorable Charles Schumer’s threats; the many calls for the Usurpers to pack the Court; and of course the threats to the lives and families of the Justices themselves. That kind of pressure can bend just about anyone. It has in the past.
Add to that a phrase that’s being shouted with increasing frequency and stridency: Stare decisis! That phrase, which means “let the decision stand,” has been a Court guideline for many decades. Unfortunately, it’s being invoked against a return to originalism. Originalist reinterpretations of Constitutional constraints would upset a great amount of case law – too frequently called “settled law,” as if no Court had ever overturned a previous Court’s decision. (Dred Scott v. Sanford, anyone? How about Plessy v. Ferguson?) And there is something to say for a “conservative” approach to Court jurisprudence: overturning previous decisions can cause convulsions to ripple through American society as private citizens and companies adjust to the changes wrought.
Still, if the Constitution is the supreme law of the land, to which all other law must conform, stare decisis must be set aside. This is especially important in the application of Constitutional constraints on the federal government. The question of the hour is whether the Originalist Five will have the courage to continue as they’ve begun, especially in addressing cases such as the one mentioned here.
Thanks to the Trump Justices, we in the Right have more hope for a return to Constitutional government than we’ve had at any moment in the century behind us. But hope, as the saying goes, is not a strategy. Neither is the Court protected against the many enemies who seek to bend it to their will. Those two pernicious phrases and that one missing word continue to be thorns in America’s flesh. Extracting them will take more than one Court. Removing the Usurpers from the corridors of power remains imperative. They will not sit idly by should the judicial winds continue to blow toward freedom.