Where Is The Supreme Court Taking Us?

By Karen and Erica

The Preamble to the United States Constitution says:

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.

The decisions in recent cases denigrating women’s bodily autonomy, eviscerating a state’s judgment as to how to keep its citizens safe from gun violence, and decimating Congressional use of experts to combat climate change, do not further these Constitutional objectives.

• How does a ruling that a rape victim has no right to terminate her pregnancy establish justice or secure domestic tranquility? Why does potential life have overwhelming weight compared to the actual life of a mother?

• How does a ruling that means every one of us has the right to carry a gun into the subway provide for the common defense or domestic tranquility?

• How does a ruling that Congress cannot delegate to experts specific decisions about how to reduce carbon emissions secure the blessings of liberty to our posterity while risking the end of our posterity?

The authors of these opinions seem to be saying that they have no choice but to reach these decisions, because the men who wrote the Constitution decreed that we must live in a Mad Max world.

That determination cannot be right, and demonstrates a remarkable detachment from experiential life. The Constitution was written for the ages, not to entrench the eighteenth century in America forever. As Chief Justice Marshall said: We must never forget that it is a constitution we are expounding ... intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

And indeed the opinions adapt when they want to. As just one example: the majority decision in the gun case held that even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. So the Court is forced to apply eighteenth century rules–unless it is not! The right to bear arms (without reference to any militia participation) is fixed and immutable, but the definition of arms morphs from muskets to automatic weapons without skipping a beat. Can that dichotomy possibly be what Marshall meant by adapting to the various crises of human affairs?

What to do? Vote. And we will. We have always believed that the right to vote is sacred and invaluable. But is the exercise of the vote really potent if the only rights that the Court will recognize are those the Justices imagine were granted to those in power back in the day—updated for lethal impact? 

Obviously, this is not a legal analysis, but, rather, a suggestion that common sense and lived experience should play a role when considering the intent of the founders as expressed in their stated goals for the Constitution. They did not relegate us to Thunderdome.