<!–

–>

July 3, 2022

As is usual, the Supreme Court saved its most important decisions for the end of this term, and the three biggies were handed down within days of each other: “Bruen (gun rights), Dobbs (abortion rights) and West Virginia (administrative regulation of CO2).” 

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609268089992-0’); }); }

You don’t have to be a constitutional law scholar to wade through all this and the footnotes, citations, and legal disputations. Francis Menton has done it for you: 

(You can’t rely on the major media to do it. For the most part they share the same ideological viewpoint as that of the three dissenting justices, a view Menton explains very well.)

In a nutshell:

  •  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. [/quote]

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609270365559-0’); }); }

These two views, he correctly observes, are irreconcilable.

The dissents, like the media coverage (I add) are made in the context of a 6-3 division in which View 2 has no chance of prevailing over the court’s majority which, unlike the media and academia, adheres to View 1.

So what’s the losing justices’ option? Obfuscate, because you sure don’t want people to understand that you want to take a position contrary to the clear words of the Constitution and as well, I say, to the overwhelming views of the electorate.

In Bruen, the dissent argued that gun control was the only acceptable moral decision in the face of statistics on firearm killing. (Another, option, of course, is a constitutional amendment, but the dissent knows as well as I do that would never pass.)

In the Dobbs case, the majority said there was nothing in the Constitution respecting a right to abortion, and that was an issue best left to the states, not some fancy penumbra and emanation confection by the Court. Again, the dissent made an appeal to its view of morality, not the law. Menton summarizes the dissent’s argument:

“To oppose us would be to take women back to the Middle Ages.  And what exactly does that have to do with the Constitution?  Only a troglodyte could ask such a question!  Obviously, the Constitution says whatever is needed to support these critical moral principles.”