Constitutional fetish worship has been a feature of American politics from practically the moment it was enacted. This document, entirely by accident, serves as a core source of government legitimacy, despite the fact that it was hurriedly slapped together over a few months and never worked as intended, not even at the beginning.
It would be a good thing if we had less reverence for the Constitution, allowing us to go about perfecting it democratically, through a deliberative process of representatives of the people. Instead, we get the worst of all possible worlds: a culture of Constitution worship that resists change, yet also massive alterations to the founding document, entirely from unelected men and women in robes.
In short, if you want to change the Constitution, you get the Supreme Court to rewrite it for you. That only requires five justices to exercise the rule-by-decree powers they have arrogated to themselves, instead of the incredibly cumbersome amendment process requiring two-thirds of the Senate and House, and three-quarters of the states, which is impossible in our hyper-polarized times. As Thomas Jefferson once wrote, under judicial review, the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Now, one of the central arguments in favor of judicial review is that it is necessary to protect individual constitutional rights from being eroded by the legislature. So let’s look at both sides of the equation, read through the Constitution, and compile a non-exhaustive list of the ragged holes the Supreme Court has blasted in it, through action or inaction.
Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States…” The Court has gradually stolen this power from Congress over the years. The recent decisions Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, in which the Court seized control of the entire administrative state, are just the capstones.
Article I, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” In Alexander v. South Carolina State Conference of the NAACP, the Court has signed off on egregious gerrymandering so “the People” in an increasing number of Republican states have little or nothing to do with who is elected to the House.
Article I, Section 3: The last paragraph in this section makes clear that the formal punishment for impeachment is only removal from office and prohibition from holding office again, but also that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” This language obviously takes for granted that presidents can be prosecuted for criminal acts, which the Roberts Court has recently forbidden (see below).
Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…” Sorry Congress, no election regulations if John Roberts doesn’t like them. In Shelby County v. Holder, which removed most of the strictures preventing southern states from engaging in Jim Crow-era voter suppression, Roberts didn’t even bother to cite the Constitution. Afterwards, of course, southern Republicans immediately started disenfranchising minorities once more.
Article I, Section 7: This grants the House the famous power of the purse, stipulating that “All Bills for raising Revenue shall originate in the House of Representatives.” Except not anymore, at least if you’re President Donald Trump, in which case the Roberts Court will kindly let you steal $6 billion from the military to build random sections of border wall.
Article I, Section 8: This enumerates Congress’s powers that, once again, are now possessed by the judiciary. The legislature can make rules if and only if they don’t run afoul of the Court’s political views.
Article II: This entire article, which outlines the fairly modest explicit powers of the president, is dead, dead, dead. In Trump v. United States, Roberts has anointed the president as a king formally above the law, immune from prosecution for everything he does as president, and who can therefore imprison or murder his political opponents with impunity. Roberts may as well have dug up James Madison’s corpse and micturated directly into the eye sockets.
That said, it’s still worth emphasizing that the Court has also deleted both of the Constitution’s anti-bribery clauses for the president. Article I, Section 1 says the president “shall not receive within that Period any other Emolument from the United States, or any of them,” while Article II, Section 9 says that no one holding federal office can “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
In office, Trump funneled unknown but vast quantities of federal money, as well as that of foreign governments, into his own pockets through his various properties. The Roberts Court deliberately ran out the clock on a case invoking the Emoluments Clause on Trump and then dismissed it, making it clear that it’s fine and dandy for the president to loot the government, or take massive bribes from foreign powers.
Article III: It’s worth noting there is no explicit mention of judicial review in the Constitution anywhere.
Article IV, Section 4: This says the “United States shall guarantee to every State in this Union a Republican Form of Government,” but again, the Court has not only stood aside as Republicans set up flagrantly rigged, authoritarian state election systems, but also helped them out.
The total abolition of Article II is certainly the worst thing the Roberts Court has done by a wide margin.
On to the Bill of Rights! First Amendment protections for freedom of worship, speech, and the press are under an all-out assault from right-wing state legislatures. The “ten commandments” (not the actual ones, incidentally) are being set up on government property across several states. Bigoted restraints on the speech rights of teachers and professors have swept the country. Mississippi is persecuting reporters for uncovering flagrant welfare fraud on the part of the state Republican regime. The Court is doing nothing about any of this.
The Second Amendment is not so much dead so much as metastasized in the Roberts Court petri dish, cancer-like, into a sweeping grant of gun rights that every one of the founding fathers would have regarded with slack-jawed horror. It obviously does not protect, and was not intended to protect, an individual right to own as many fully automatic weapons as you like in preparation for your upcoming workplace massacre. But under the Roberts Court that’s what it has become.
The Fourth Amendment’s protection of unreasonable searches and seizures has been steadily eroded by the Court. Any savvy law enforcement officer can easily search your property or read your private communications.
The Fifth Amendment’s requirement that no one be deprived of “life, liberty, or property” without due process of law does not apply to growing categories of citizens. President Obama set up a drone assassination program that killed American citizens, while Trump sent a straight-up death squad to summarily execute the leftist Michael Reinoehl after he shot and killed a far-right activist during an altercation, and Trump repeatedly boasted about it. Again, the Court did nothing in either case.
The right guaranteed in the Sixth and Seventh Amendments to fair jury trials for accused criminals is a dead letter. More than 95 percent of criminal cases end in a plea bargain. The Eighth Amendment protection against cruel and unusual punishment is a dead letter too, especially if you happen to be homeless. Right-wing states can torture people to death with the Court’s blessing.
The Fourteenth Amendment is mostly toast. As to Section 1, states are abridging the “privileges and immunities” of citizens right and left, due process protections are increasingly abridged, and numerous groups, from transgender people to pregnant women and others, are suffering explicit legal discrimination without so much as a peep from the Court. Section 2, which requires that states which disenfranchise their citizens lose representation in the House, has never been enforced. The Roberts Court recently deleted Section 3, which forbids traitors and rebels from serving in the government, once again to protect Donald Trump from accountability.
The Fifteenth Amendment’s prohibition against disenfranchising people based on race is gone. Not only will the court happily allow GOP states to gerrymander their Black citizens into permanent electoral irrelevance, as noted above the Court also prohibits Congress from doing anything about it.
I could go on, but the point is made.
The total abolition of Article II is certainly the worst thing the Roberts Court has done by a wide margin. It is the worst Supreme Court decision since Plessy v. Ferguson or perhaps even Dred Scott v. Stanford. The intention, obviously, is to pave the way for a Trump dictatorship, like some Enabling Act passed before Hitler actually took power. But it’s in keeping with the thrust of Roberts’ jurisprudence since the moment he was confirmed.
It all calls to mind Alexander Hamilton’s famous argument in Federalist #78 that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them,” in that it controls neither the military nor the budget. The “general liberty of the people can never be endangered from that quarter,” he concluded.
Standing hip-deep in the shreds of constitutional rights that John Roberts and his corrupt, illegitimate cronies have torn up, we can conclude that Hamilton was utterly, completely wrong. But he was right that the Court only has power insofar as Congress and the president agree they do. Perhaps it’s time to reconsider that state of affairs.
Ryan Cooper is the Prospect’s managing editor, and author of ‘How Are You Going to Pay for That?: Smart Answers to the Dumbest Question in Politics.’ He was previously a national correspondent for The Week.
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seem like there was any long-term strategic plan here.
Aging Capriciously 