Tags: Presidential History | Supreme Court | adams | ginsburg | jefferson

Return the Constitution to the People Where It Belongs

we the people the united states constitution

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By Thursday, 24 September 2020 02:00 PM Current | Bio | Archive

Why all the wailing and gnashing of teeth over the possibility of filling the vacancy on the Supreme Court created by the passing of Ruth Bader Ginsburg?

Aren’t Supreme Court Justices supposed to decide cases according to the law and Constitution? Wouldn’t any new appointee to the court do just that?

Why is Sen. Chuck Schumer, D-N.Y., threatening to "pack the court," to increase its size to build a majority of Democratic-appointed Justices, if the Democrats retake the Senate?

Why is U.S. House Speaker Nancy Pelosi, D-Calif., contemplating a second impeachment of President Trump if he dares nominate a new Justice?

Why does Rep. Alexandria Ocasio-Cortez, D-N.Y., outspoken and from the Bronx, warn Senate Majority Leader Mitch McConnell, R-Ky., that if he goes along with the president’s desire to confirm a new Justice he will be "playing with fire?"

Why would these Democrats all but call for armed insurrection because of a judicial appointment?

This could be seen as simple political payback, because the Republicans refused to allow confirmation of Barack Obama’s 2016 nomination of Judge Merrick Garland, but much more is actually at stake.

It is not unusual, in American History, for presidents to succeed in placing their picks on the Court, even in the last years of their administrations, and, in fact, the greatest Justice of them all, John Marshall, whom nearly everyone venerates, was appointed and confirmed in the waning months of the Adams administration, after John Adams had actually been defeated by Thomas Jefferson.

What is unusual is that we have reached an historical moment where the two political parties have starkly different visions of what the Court’s task is, and about the meaning and character of the Constitution itself.

Some of the partisans in this pitched battle have framed it as a dispute over whether Roe v. Wade, 410 U.S. 113 (1973), the controversial decision discovering a right to abortion in the Constitution, will stand, but the likelihood of Roe being overruled any time soon is actually very slim, given that it was strongly reaffirmed by the Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), and in many other decisions since then.

The real controversy is actually over the jurisprudence that led to Roe, to many of the decisions of the Warren Court, and even to the famous "switch in time that saved nine," when the Supreme Court, in 1937, suddenly took a more favorable stance toward allowing FDR and Congress the power to regulate interstate commerce, reversing its earlier position that overruled many of the measures of the early New Deal.

Those decisions were made by Justices who believed that the meaning of the Constitution was not fixed for all time, and that the ringing phrases of the Bill of Rights, such as "equal protection" and "due process," were broad enough to accommodate the changes in culture and "evolving standards of morality" actually to render the document malleable in the hands of the justices.

This is the view of our Constitution as a "living document," one embraced not only by Justice Earl Warren, but also by Justice Ginsburg, her colleagues Justices Stephen Breyer, Sonya Sotomayor, and Elena Kagan, and expressly by President Barack Obama.

Republicans, however, and, in particular President Trump, now adhere to a different, more traditional view, associated with the late Justice Antonin Scalia and Justice Clarence Thomas.

This jurisprudence, which usually goes by the name "Originalism," holds that the "living Constitution" idea is nothing but a license for the arbitrary exercise of judicial power, and that only by interpreting the Constitution according to the manner in which it was understood by those who framed it, can we have a clear and certain rule of law.

Originalists, like Scalia, go even further, and suggest that when the Supreme Court, in effect, makes new law, it usurps the role of the legislature, and thereby fundamentally alters the Constitutional structure of separation of powers and checks and balances.

The Democrats, who have for years used the "living Constitution" theory to get the Court to implement policies that they couldn’t get through legislatures, according to Scalia, were actually undermining popular sovereignty (the notion that the people should be the only rulers) and, indeed, repudiating the rule of law itself.

Republicans, as originalists, now believe that law is something different from politics, and that the Constitution is the expression of the permanent values of our polity.

Democrats, as "living Constitution" theorists, believe that document should be put in the service of whatever political policy goal strikes their fancy at any given time.

Ruth Ginsburg’s reported deathbed wish was that the next president fill her vacated position, but justices are not hereditary aristocrats to whom deference is owed.

It's always the right time to give the Constitution back to the people themselves.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.

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Ruth Ginsburg’s reported deathbed wish was that the next president fill her vacated position, but justices are not hereditary aristocrats to whom deference is owed. It's always the right time to give the Constitution back to the people themselves.
adams, ginsburg, jefferson
Thursday, 24 September 2020 02:00 PM
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