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Tag Archives: US Constitution

What Is To Be Done?

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That’s the title of an 1863 novel by Nikolai Chernyshevsky. It’s about a woman who escapes the control of her family and finds economic independence. (Lenin borrowed the title for a pamphlet about a few “burning questions” in 1902.)

It’s the phrase that came to mind in reaction to the Supreme Court Six’s effort to make America fit their reactionary politics.

Here are two aspects of the situation that make it remarkable (there are others).

One is that the six reactionary Republicans are trying to justify their bizarre rulings by referring to made-up legal theories. As right-wing judges have done for years, they cite “originalism” and “textualism”, the ideas that the Court should pay close attention to the Constitution’s precise text and the specific intentions of its authors. It just so happens that the text and the perceived intentions always support whatever justices like Alito and Thomas prefer to do. Justice Kagan pointed this out in her dissent to the EPA case:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

The “major questions doctrine” is a classic conservative invention. Paul Waldman explains that one:

[It] holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.

Another right-wing invention concerns “independent” state legislatures. Mr. Waldman continues:

Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.

Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.

Why are conservatives attracted to this idea? … The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.

In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — … the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules [no matter what the state’s constitution or courts say], they can [help] Republicans win.

The Supreme Court Six’s decision-making is all about the Republican agenda. It’s all about power.

So how did we get here? That brings up another remarkable aspect of our situation. Trump toady and US senator Lindsey Graham is outraged that Senate Democrats might want to do something about this renegade Court (like changing the filibuster rule, which Republicans did in 2017 in order to easily install Supreme Court justices of their choosing). Graham says it took 50 years for Republicans to skew the Court and now Democrats want to clean up the mess in a matter of weeks.

Josh Marshall responded to Graham:

This is true. It took them 50 years. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Democratic appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections [over 50 years]. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working, they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase Theodore Roosevelt. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system.

… What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, i.e. majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it….

Having captured the courts through unprecedented political means, Republicans like Graham now want to dive headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats or exploit the minoritarian quirks of the Constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote. Whether Democrats will be able to pull this off will come down to the results of the November election.

Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

But what can be done? I want to blog about that next time.

Why the Court Has Gone Rogue and Ideas on How to Fix It

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Five justices nominated by Republican presidents (and two nominated by Democrats) passed Roe v. Wade in 1973. Four justices nominated by Republicans (and one nominated by a Democrat) upheld Roe v. Wade with some revisions in 1992.

That didn’t happen this week. David Roberts (of the Volts newsletter) helps explain how the Supreme Court got filled up with right-wing fanatics:

If you read about the birth of the Federalist Society, there’s a kind of theme in the background that’s worth elevating. Conservatives’ problem over the years is that they would nominate judges & then be “betrayed” as judges drifted left (or just moderate). Souter, Kennedy, Blackmun etc.

Conservatives have lots of ways to explain this to themselves. Being exposed to liberals corrupts the bodily fluids! Etc. But the most most sensible & obvious explanation is that decent people, once they survey the evidence & arguments, come out in a decent/compassionate/liberal place.

Now, noticing that the smart, decent people they nominated kept coming to compassionate/moderate conclusions, they did NOT conclude, “gosh, maybe we should be more compassionate/moderate, since that’s where good-faith study of the evidence seems to lead!”

Instead, they decided they needed a cult-like organization where they could create hyper-ideological zealots, people so committed to reactionary conclusions that NO amount of exposure to evidence or simple humanity could ever change their minds: thus, Federalist Society.

Thus we have the striking situation we get today: liberals looking for judges can pull them from anywhere. But conservatives looking for judges can ONLY find them in this creepy billionaire-funded hothouse fringe cult full of ditto-brained mediocrities.

It’s really a great illustration that if you want someone truly, consistently reactionary, you need to find a particular dysfunctional personality type that can selectively ignore evidence, ignore nuance & context, ignore simple humanity & human need. You need a zealot.

That’s why the conservatives on SCOTUS are, in addition to being so horrible on the law, just kind of weird & creepy — intellectually mediocre but hyper-prickly & vain. They were forged in the Federalist Society laboratory. That does not produce normal, healthy people.

Unquote.

Jamelle Bouie of The New York Times has some ideas about fixing the Court:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system. For many Democrats, President Roosevelt’s attempt to expand the size of the court is less a triumph than a cautionary tale — a testament to the limits of presidential leadership and presidential power.

But Roosevelt did eventually get a Supreme Court that allowed most of the New Deal to stand. The threat worked. The court was humbled.

It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

Unquote.

One way to begin is for anybody who had trouble voting for Barack Obama, Hillary Clinton or Joe Biden in a general election to recognize that the Democratic Party, lame as it often is, is the only institution that stands between us and living in an anti-democratic, Christianity-centered, climate crisis-denying, anti-woman, anti-gay, reactionary dystopia.

We also need to exert pressure on the aged leaders of the party to face reality. This isn’t 1991 anymore.

Use what’s left of our democracy or lose it.

According to a Majority of the Supreme Court, the Earps and Doc Holliday Were the Bad Guys at the O.K. Corral

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The Smithsonian Magazine offers a brief history lesson regarding gun control:

Marshall Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holliday, is having a gun control problem. Long-running tensions between the lawmen and a faction of cowboys … will come to a head over Tombstone’s gun law.

The laws of Tombstone at the time required visitors, upon entering town to disarm, either at a hotel or a lawman’s office. Residents of many famed cattle towns, such as Dodge City, Abilene, and Deadwood, had similar restrictions. But these cowboys had no intention of doing so as they strolled around town with Colt revolvers and Winchester rifles in plain sight…

When the Earps and Holliday met the cowboys on Fremont Street in the early afternoon, Virgil once again called on them to disarm. Nobody knows who fired first….

The “Old West” conjures up all sorts of imagery, but broadly, the term is used to evoke life … in small frontier towns – such as Tombstone, Deadwood, Dodge City, or Abilene, to name a few. One thing these cities had in common: strict gun control laws.

… Frontier towns by and large prohibited the “carrying of dangerous weapons of any type, concealed or otherwise, by persons other than law enforcement officers.” Most established towns that restricted weapons had few, if any, killings in a given year.

But Justice Clarence Thomas and his reactionary colleagues have their own view of history. From Talking Points Memo:

Thomas, writing for the majority, slapped down New York’s 100-year-old concealed carry licensing scheme Thursday on the grounds that it has no historical analogue. [Wait, doesn’t a law that’s 100 years old have some history on its side?]

Government interest — like protecting the safety of its citizens — is not enough to get around the all-expansive Second Amendment, he writes. To be legitimate, a gun regulation must have a historical cousin….

The notion is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day gun regulation, even for weapons that the people of that time could not have imagined existing?

Justice Breyer, joined by Justices Sotomayor and Kagan, focuses his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

“Will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” he ponders, before sketching out his argument that his conservative colleagues have done just that.

Breyer lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous,” Breyer reels off.

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes….

[This decision] rings similar to Justice Samuel Alito’s draft opinion overturning abortion rights, which roots much of its argument in cases where abortion access was not protected in the country’s earliest days, and before. He asks [Americans] to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were considered much less than full citizens.

To sum up, David Roberts on Twitter:

[The Supreme Court] is just going to keep doing stuff like this, worse & worse & worse….A tiny group of hyper-ideologues, forcing the rest of us to live medievally. That’s the current status quo trajectory….

“Neither the broad American public nor the center-left Democratic & media establishment understands or appreciates how [fucking] lunatic the right has gotten” is something I’ve been saying for two decades now. Was always true & still is.

A Few Immediate Reactions to Our Renegade Right-Wing Supreme Court’s Latest Dictate

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From Mark Joseph Stern of Slate:

The Supreme Court’s fourth and final opinion of the day is in Bruen. In a 6–3 opinion, [Clarence] Thomas writes that New York’s strict limits on the concealed carry of firearms in public violates the Second Amendment.

Thomas’ opinion for the court dramatically expands the scope of the Second Amendment, blasting past ostensible restrictions laid out in Heller to establish a new test that will render many, many more gun control laws unconstitutional.

Before today, about 83 million people—about one in every four Americans—lived in a state that strictly limited concealed carry to those who had a heightened need for self-defense. Now, zero people live in such a state.

Thomas’ opinion for the court suggests that judges may NOT consider empirical evidence about the dangers posed by firearms when evaluating gun control laws. They may only ask whether a modern regulation has some analogue that is rooted in American history.

It’s difficult to overstate how devastating Thomas’ opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.

From Paul Waldman of The Washington Post:

Just getting started reading the gun decision, but every sentence so far makes clear what a joke and a scam “originalism” is. It continues to amaze me that anyone takes it seriously.

It’s just one assertion after another about how what people thought in 1790 is sacrosanct, except when it isn’t, but also here’s a novel way to think about 1790, but also that doesn’t matter either. It’s Calvinball as legal reasoning. The bad faith is just incredible.

[Note: Calvinball is a game invented by Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along.]

From yours truly and Matt from the UK:

Isn’t the entire problem here that you’re paralysed by your constitution, because it makes the question into exegesis of this supposedly infallible document, rather than actually analysing the problem and considering what to do about it?

Excellent point. We are paralyzed by a document that’s 230 years old and difficult to amend. But we are also paralyzed by right-wing judges (i.e. politicians) who use this vague notion of “originalism” (what the founders intended) to justify their contemporary political beliefs.

Yes, but then ‘originalism’ is possible because of the written form. Without one, my country has no equivalent paralysis. Plenty of our own constitutional problems, of course, but they don’t really result in regular spree killings in schools.

Yes, having a written constitution is clearly a constraint, being old & difficult to amend adds to that basic constraint, and having a Supreme Court with too much power & too many political hacks issuing dictates makes it even worse. (My answer assumes there can be degrees of paralysis.)

Some Truth About the Constitution and Well-Regulated Militias

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Rolling Stone has a good article about the twisted reading of the 2nd Amendment we’re living under. From legal affairs journalist Jay Michaelson:

The lie at the heart of all of this insanity is the Right’s ludicrous perversion of the Second Amendment. . . . Until 2008, no federal court had held that the Second Amendment conveyed a right to own a gun. On the contrary, the Supreme Court clearly said that it didn’t.

Why? Because of the obvious language of the amendment, which reads, in full, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For nearly two hundred years, there was widespread agreement that the Second Amendment meant what it said: that the right “of the people” meant the right to bear arms in well-regulated militias, which was how the nation protected itself prior to standing armed forces and police, and which slave-owners maintained to protect against possible uprisings.

Unquote. I interrupt the Rolling Stone article to insert more about militias from lawyer M. S. Bellows, Jr.:

What many don’t know is the Constitution’s *other* militia clauses that give the 2nd Amendment context:

Yes, “militia” is discussed OUTSIDE the 2nd Amendment. Article 1, Section 8 gives Congress power over national defense, including the army, navy – and militia. If we want to understand what the 2nd Amendment means by “well-regulated militia,” that’s where we have to start.

First, the Framers knew Caesar had led his troops across the Rubicon to crush the Republic and foresaw that a too-strong standing army could topple their nascent democracy in a military coup (as we’ve seen countless times elsewhere).

Accordingly, the Framers allowed for a permanent navy but a TEMPORARY army: “Congress shall have the power… To provide and maintain a Navy” (full stop), and “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”

But how could the new nation defend itself on land without a standing (i.e., permanent) army? The militia.

The idea being that in 1787, armies weren’t hard to create quickly: just pull cannons out of a warehouse, requisition a bunch of mules/horses, and call for volunteers . . .

But there’s more to it:

By “militia,” the Framers didn’t mean the Proud Boys and similar beer-swilling yahoos acting on their own initiative. They meant volunteer professionals, soldiers who would be equipped, trained, regulated, and deployed BY CONGRESS just like other military units. Here, read it for yourself. Article I, section 8, clauses 15 and 16:

“[Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, 
 reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

So: CONGRESS is responsible for deploying, overseeing, *arming*, and *disciplining* (i.e training and regulating) the militia (with the states choosing local officers and arranging for training as Congress directs). Basically, the National Guard. . . .

Which is the point of this thread: that the 2nd Amendment doesn’t stand in isolation. It’s part of a larger scheme. After the original Constitution was adopted, the Framers immediately wrote the Bill of Rights: ten amendments designed to clearly identify and protect certain rights. One of them was the right to keep and bear arms.

Why? Some Framers feared the Constitution endangered states’ rights. Southern Framers, in particular, feared Congress might disarm the state militias that existed mainly to suppress rebellion by enslaved people. So the 2nd Amendment provides that members of the militia can’t be disarmed by the federal government.

Which basically is the same as saying that federal troops aren’t allowed to seize the Oregon National Guard armory in Salem. Which is fine. I can live with that.

Unquote. So how did we get to the point where a well-regulated militia is now interpreted as almost anybody with a credit card? Back to Rolling Stone:

What changed?

. . .  While the 1972 Republican party platform had actually supported gun control, the Reagan Revolution transformed the party.  (Ronald Reagan wrote an article praising individual gun ownership in Guns & Ammo magazine in 1975.)  Now, being pro-gun, like being anti-abortion, became a pillar of the New Right ideology.

After all, it ticked all the boxes, tapping into white fears of “crime” and “the inner cities,” populist resentment of “big government,” and male fears of losing power in the age of women’s liberation. The Right’s newfound infatuation with guns was white, male fragility projected onto firearm ownership.

And what had once been a fringe view rejected by the Supreme Court — that the Second Amendment gave individuals a right to own guns — gradually became Republican Party gospel when the fringe took over the party.  Former Chief Justice Warren Burger (a conservative appointed by Richard Nixon) described it as “a fraud on the Amer­ican public.”

Eventually, this view won out, not by persuasion but by simple politics. By 2008, there were five conservative justices on the Supreme Court, and Justice Scalia wrote an opinion in D.C. v. Heller saying that the Second Amendment conferred an individual right to own guns.

There are numerous problems with Scalia’s opinion:

First, he claims that the clause about militias is just a preface, with no relevance to the meaning of the right. “The former does not limit the latter grammatically, but rather announces a purpose,” he wrote. . . .  But wait a minute – if maintaining militias is the purpose of the amendment, then why does “the people” mean not militias but individuals?  Why is a purpose not a purpose? Justice Scalia simply dismisses the first half of the amendment as merely decorative, with no function whatsoever.

Second, Scalia simply dispatches as “dubious” the drafting history of the amendment, in which James Madison deliberately did not use language of individual rights that was present in contemporaneous documents. Thomas Jefferson, for example, had once proposed “No freeman shall ever be debarred the use of arms.” That proposal was rejected.

Third, Scalia inverts the meaning of the Second Amendment itself, by saying that Congress actually can ban military-grade weapons (i.e. the kinds a militia would use) but not handguns, which are used for self-defense (which the amendment never mentions).

Of course, what’s really happening here is a social, cultural phenomenon, using the constitution as an excuse. . . .

The tragic irony . . . is that we know how to stop this from happening. . . . The advocacy group Everytown for Gun Safety lists 37 solutions on its website, from background checks to waiting periods, prohibiting ‘open carry’ to repealing ‘stand your ground’ laws, banning high-capacity magazines and assault weapons to holding the gun industry accountable.

. . .  But God help any Republican who has the courage to stand up to the NRA, gun manufacturers, and the rage of the populist Right. . . . Our [inability] to do anything about these horrifying mass shootings is not the Second Amendment’s fault. . . .It’s Republicans’ fault. It is that simple.

Unquote. Today it’s also the fault of a few rogue Democrats in the Senate who love the filibuster and fear doing anything about guns. But the point remains: almost all Republican politicians oppose gun control and almost all Democratic politicians support it. 

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