SCOTUS HAS LOST THE PLOT - PART I
The Framers' Intent is Hiding in Plain Sight. Live by it!
For at least the past quarter of a century, Republican appointees dominating the Supreme Court of the United States (SCOTUS) have handed down numerous questionable decisions on major constitutional issues – e.g., money in politics, regulations, abortion rights, gun control, presidential immunity -- guided by right-wing ideology ultimately dictated by oligarchs rather than adherence to the intent of the framers, often producing manifestly negative results, about which more in subsequent parts of this essay.
In so doing, the Republicans on the Court bend themselves into pretzels to justify their opinions by claiming to divine the framers’ intent through devices like “originalism,” “textualism,” citing writings by some Founders (notably Madison, Hamilton, and Jay in the Federalist Papers), referencing precedents in English common law, the English Bill of Rights (1689), and even Sir Matthew Hale, a 17th-century British jurist who conceived the notion that husbands can’t be prosecuted for raping their wives, who sentenced women to death as “witches.”
Let me suggest an alternative source of insight into the framers’ intent hiding in plain sight:
The Preamble to the U.S. Constitution explaining the goals and purpose of the government.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
“In the years following the Constitution’s ratification, the Preamble has had a relatively minor role as a matter of legal doctrine, but an outsized role, particularly outside of the courtroom, in broadly embodying the American constitutional vision. With regard to the legal effect of the Constitution’s preface, in the early years of the Supreme Court, it did reference the Preamble’s words in some of the most important cases interpreting the Constitution.” (Click here.) Today, SCOTUS generally does not rely on the Preamble in formulating its decisions, and when cited (as Justice Scalia did in Heller (2008), the landmark 2nd–Amendment case), justices summarily dismiss the significance of the Preamble as merely “providing context,” or “shedding light on the spirit in which the Constitution is written, without granting or limiting the powers of government.” The Court consistently maintains that the enforceable rights and powers of the government come from the specific articles of and amendments to the Constitution, not from the Preamble itself, and consequently, “it is not considered a legally operative part of the Constitution upon which decisions can be made.” (Emphasis mine.)
Say whaaaat?
These conclusions are illogical, cynically self-serving, and contrary to the framers’ objectives, demonstrating that SCOTUS has lost the plot. What sense does it make to assume the framers formulated “legally operative parts of the Constitution” at odds with their stated goals and purposes of government in the Preamble? If the former are not at odds, then they should be in agreement with the latter. There exists no clearer statement of the framers’ constitutional intent than the Preamble, written in plain English so that We the People can understand it and thereby insist on adherence to its precepts by SCOTUS, Congress, and the Administration. Not an appendage or afterthought but rather the leading thought of the Constitution, deserving the authority of first mention, the Preamble is an integral component of the Constitution signed by the framers, providing the precepts by which SCOTUS should be guided when called upon to interpret constitutional issues. (For the limits of SCOTUS’ remit, my post: “Is It Time to Reject Chief Justice Marshall in Marbury v. Madison?”)
Accordingly, to discern the framers’ intent, forget the malleable intricacies of textualism and originalism; the central government bias of Hamilton, Madison, and Jay; and the dubious precedents of 17th-century British jurisprudence. (We fought the Brits to rid ourselves of their laws, didn’t we?) These devices now serve only to give six Republican justices the latitude to bend the Constitution to serve their often unpopular, counterproductive ideological imperatives at odds with the framers’ purposes. Not surprisingly, SCOTUS chafes at the restrictions the Preamble imposes and dismissively cuts the cord of accountability imposed by adherence to it. Linking SCOTUS’ mandates to the Preamble would severely restrict its decisions. For example, if required to conform to the Preamble impartially, arguably, SCOTUS could not have handed down the landmark decisions on Citizens United (2010 money in politics), Loper Bright Enterprises (2024 federal regulations), Dobbs (2022 abortion rights), Heller (2008 gun control), Trump v. United States (2024 presidential immunity). (See subsequent parts of this essay.)
I come from the world of business. When management presents a proposal to the board of directors, it begins with a statement of objectives followed by a plan to achieve them. The board will toss out any plan elements failing to support the objectives. Accordingly, the proposal succeeds or fails before the board to the extent that its elements support the objectives. It’s as simple as that.
Logically, the same principle and standard apply to decisions by SCOTUS. Let me say plainly: In stating the goals and purposes of government, the Preamble sets the framers’ standards by which the powers of government written into the Constitution should be interpreted by the judiciary and implemented by the legislature and executive. When disputes arise regarding issues raised in the Constitution, SCOTUS should resolve them with decisions in harmony with the Preamble. If SCOTUS fails in this assignment, as it has in the issues to be discussed in subsequent parts of this series, it is up to Congress to make it so through the normal legislative process, with authority bestowed by a) its first mention in the Constitution (Article I) as the preeminent branch of government, and b) specific clauses in the Constitution (see below). Therefore, the power to compel specific behavior of We the People must not rest ultimately with nine unelected individuals holding life tenure and axes to grind. Instead, as the framers intended, ultimate power must be exercised by elected officials responsive to and representing the interests of the People (as I argue in my previously cited blog. Click here.) Presciently, Thomas Jefferson believed that Marshall’s arrogation of the power of judicial review in Marbury v. Madison concentrated too much power in the judiciary. Fearing SCOTUS’ judicial review could lead to judicial tyranny, Jefferson argued that the Constitution should be interpreted in a way that allows for the will of the people to prevail, and he was concerned about the judiciary interfering with legislative and executive powers, as indeed it has.
Sadly, the Republican majority (now a 6:3 supermajority), rather than “calling balls and strikes,” consistently exhibits naked partisanship, thereby undermining public confidence in the Court’s legitimacy, leading to the widespread perception of SCOTUS as an unelected political body rather than an impartial arbiter of the law. Polarization of the nomination and confirmation processes, where justices are often confirmed on strict party-line votes, adds to this perception. Arguably, beginning with Bush v. Gore (2000), Republican appointees to the Court have rendered decisions aligned with the interests of Republican elected officials who appointed and confirmed them, congruent with the interests of wealthy Republican donors, to the detriment of everyday Americans. Not surprisingly, a 2023 Gallup poll showed that only 41 percent of U.S. adults approve of how the Court is handling its job, within one point of an all-time low. Moreover, “Bucking their traditional reserve, judges from across the spectrum are publicly disagreeing with the Supreme Court justices and decisions.” (Newsweek)
It’s time for Congress to do its job: The “Necessary and Proper Clause” of Article I and Article III of the Constitution and grant Congress significant authority to regulate the Court’s jurisdiction, size, procedures, ethics, and processes.
Article I, Section 8, Clause 18:
[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Emphasis mine.)
Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptionss and under such Regulations as the Congress shall make. (Emphasis mine.)
Requiring SCOTUS to render decisions conforming with the Preamble is a good place to start.
Accordingly, SCOTUS would be discouraged from resorting to tortured interpretations of the Constitution by other means to serve their ideological imperatives at the expense of judicial impartiality, the intent of the framers, and the interests of We the People. If SCOTUS fails to comply with this requirement, Congress should exercise its constitutional power to override such decisions through the constitutionally mandated process or, at a minimum, demand a rewrite by SCOTUS. These reforms would go a long way to aligning SCOTUS with the framers’ intent while preserving the separation of powers and checks and balances inherent in the Constitution.
Epilog
I am painfully aware of Congress's dysfunctionality in recent years, leading thoughtful readers to question the wisdom of proposing supreme congressional authority in deciding constitutional issues. In response to such concerns, I offer the following thoughts: 1) The framers entrusted such powers to Congress in Articles I and III, outweighing Chief Justice Marshall’s arrogation of SCOTUS’ supreme authority in such decisions without explicit constitutional endorsement, 2) Congress’ constitutional authority to create and regulate SCOTUS establishes the Court’s subordinate status. SCOTUS will doubtlessly howl “Separation of Powers” if Congress asserts its authority, at which point Congress need only to remind them that their job is to uphold the Constitution explicitly granting Congress the aforementioned powers, 3) Whereas Congress must account to the electorate whose interests the Constitution was established and ordained to serve, SCOTUS’ politically appointed justices with life tenure are under no such obligation. As mentioned earlier, SCOTUS’ lack of accountability often results in decidedly partisan decisions, contrary to the long tradition of impartiality of judicial proceedings, the intent of the framers, and the will of a majority of the electorate, according to recent polls. By placing their trust in the collective wisdom of We the People expressed through the democratic process and institutions, the framers, through bitter experience, sought to overrule unaccountable and often tyrannical judicial authority. Admittedly, Congress is an imperfect vehicle to fulfill the framers’ constitutional aspirations. However, unlike SCOTUS, under the Constitution, Congress’ errors are remediable through the democratic process, as Dr. King Jr. once said, bending “the arc of the moral universe toward justice.”
In subsequent posts, I will review the application of these proposals to specific issues and landmark cases: Citizens United (2010 money in politics), Loper Bright Enterprises (2024 federal regulations), Dobbs (2022 abortion rights), Heller (2008 gun control), Trump v. United States (2024 presidential immunity).
If you think well of the idea, kindly post a comment and share this post with receptive individuals and organizations.