The Theme of the Supreme Court

For John, BLUF:  The recent Dobbs case shows that there are different views as to the role and power of the US Supreme Court.  This reference gives us an easy breakdown of the differences in approach to the role of our Supreme Court.  Nothing to see here; just move along.

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There Are Two Fundamentally Irreconcilable Constitutional Visions

From Manhattan Contrarian, by Mr Francis Menton, 1 July 2022.

Here is the lede plus three:

It’s been a momentous couple of weeks at the Supreme Court.  As usual, they saved the big cases for the end.  This year the big three were Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2).

All three cases were decided 6-3 along ideological lines.  These cases involved the most basic issues of what the Constitution is and how it is to be interpreted.  On those issues there is virtually no hope of one side ever convincing anyone from the other side.  There just are two fundamentally irreconcilable visions of how this should work.  The two visions can be summarized in just a few sentences each:

Vision 1.  The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection.  The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.

Vision 2.  The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete.  The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document.  If a right is enumerated in the Constitution but disfavored by the current left (e.g., the right to “keep and bear arms”), then the courts should find a way to uphold enactments that minimize that right down to the point that it is a nullity.  If a right is not enumerated in the Constitution, but is a priority of the left (e.g., abortion), then that right can be discovered in some vague and unspecific constitutional language (“due process”).  And if the left has a priority to transform the economy and the way the people live, but the Congress does not have sufficient majorities to enact that priority, then the Executive agencies can implement that priority on their own authority, and the role of the courts is to assist the agencies in finding something in the tens of thousands of pages of federal statutes, however vague and dubious, that can be claimed to authorize the action.

I hold to Vision 1.  I am wary of Vision 2.  It seems to put me in the position of allowing a cabal of legislators to adjust our Constitution without going through the process laid out in our Constitution.  The same goes for the Supreme Court itself.  The Court should not be expanding or contracting our Constitution without going through the agreed Amendment process.

The Constitution is not perfect, as the twenty some amendments so far shows us.  However, it is an agreement that successfully brings together a diverse group of Citizens under one roof.  It works and we should be happy with that.

Hat tip to the InstaPundit.

Regards  —  Cliff