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We Have an Ongoing Constitutional Crisis in America... [1]

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Date: 2023-05-04

… and it has to do with people not actually reading the Constitution.

I’d love to do a deep dive with a lot of supporting evidence, but I feel this subject effectively speaks for itself, so I’m going to keep my links light and mostly stick to editorializing. I would like to note that I am not a Constitutional law scholar, but the Constitution is relatively plain to understand when not having to account for normative behavior established by precedent since. Allow me to move through some text in reverse order as I build to my two points.

Fourteenth Amendment, Section 4:

The validity of the public debt of the United States , authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned . But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Point 1: The debt ceiling is unconstitutional. Don’t just take it from me. Ignoring it has been called “the least unconstitutional option” (by Cornell University law professor Michael Dorf) for preventing a default this summer, but the text here is completely unambiguous. Ignoring the debt ceiling is the most constitutional option. President Biden can and should explain quite simply to the American public that Congress’s failure to act on extending the debt ceiling is immaterial, as the debt ceiling itself is unconstitutional, and that the US will not default.

This does not actually infringe on Congress’s powers, as Congress already approved the budget when it passed it; there is no need for a second approval on paying for the budget already passed. What will Speaker of the House Kevin McCarthy do? Attempt to impeach President Biden for following the literal letter of the Constitution? Good luck with that.

To move on to different pressing issues, namely soaring domestic terrorist attacks in the form of mass shooting sprees, and the increasingly evident lack of judicial integrity in the Supreme Court of the United States…

Second Amendment:

A well regulated Militia , being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

While it’s true that nobody is exactly sure what James Madison meant when he wrote this, we have a pretty good idea that this is all one sentence for a very good reason. This Politico article from 2014 covers the history of the Second Amendment very well. Its original meaning was to the effect that state militias (which were compulsory at the time) would not be restricted from military activities (which was what “bearing Arms” meant) by the newly formed federal government. That is to say, your right to be called upon as part of a state government militia shall not be infringed.

We have a different kind of well regulated militia today called the National Guard. You do not have a constitutional right to keep and bear guns as a private citizen, and this was held to be unambiguously true for over 200 years, with the Supreme Court refusing to endorse a private right to gun ownership four times between 1876 and 1939. The popular modern conception only became law via the actions of the Supreme Court of the United States in District of Columbia v. Heller (2008), due to the machinations of so-called “constitutional originalist” Justice Antonin Scalia and the National Rifle Association (NRA).

By the way, about that…

Article III

Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

While “good Behaviour” isn’t clarified in Section 1, it seems evident the Framers intended the Supreme Court Justices ought to conduct themselves appropriately as befitting their station. You might say that they encouraged ethical behavior.

What is far more interesting is the powers enumerated to the courts in Section 2. You will notice judicial review, that is to say deciding what is and isn’t constitutional, is not extended here. That is because it wasn't. The Supreme Court of the United States is nowhere granted that authority in the Constitution. That authority was unilaterally assumed by the Supreme Court itself in Marbury v. Madison (1803), as even the Wikipedia article plainly relates.

Now, as I said, I am not a lawyer, but it seems to me that the Supreme Court declaring the Constitution is real and binding law, and then in the same breath granting itself the power to interpret the Constitution and constitutionality when such authority is nowhere granted in said real and binding law, is more than a little fishy. This would typically be called a power grab. When a power grab comes from an elite group of unelected officials with lifetime terms and no ethics, oversight, or accountability, one might be forgiven for calling that... tyranny?

Marbury v. Madison has been allowed to hold for 220 years out of a sense of expediency, decorum, and acceptance of precedent, but one has to wonder why such an important power was never officially given to the court by a constitutional amendment. If no one objected, it surely ought to have been trivially simple to do so? Of course, in actuality, everyone objected, most especially President Thomas Jefferson. As even the Wikipedia article makes clear, Chief Justice John Marshall “had been looking for a case suitable for introducing judicial review and was eager to use the situation in Marbury to establish his claim,” and he did so in such a way as to make it politically palatable to accept his power grab.

In other words, one rogue Chief Justice in 1803, pursuing his own personal agenda, gave us the modern Supreme Court with the power of judicial review, buying off his political opponents by giving them what they wanted so they didn’t smack him down. And in that same tradition, one rogue Justice in 2008 all but unilaterally redefined the Second Amendment to suit his personal whims.

Point 2: Are we truly surprised at the lack of integrity evinced by the Supreme Court at present, given this history? Or can it be reasonably said that they’re acting today as they have essentially conducted themselves all along, pompously imposing their will in an extralegal fashion and declaring themselves beyond reproach? It seems quite evident to me that from a strictly constitutional viewpoint, the Supreme Court of the United States has been a rogue institution for 220 years. It has also finally gotten too big for its britches, with Justice Samuel Alito incessantly whining about public perception of the court, and Chief Justice John Roberts recently declaring, "Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of the separation of powers concerns and the importance of preserving judicial independence."

Perhaps, after 220 years, it’s time that the Supreme Court finally be reminded of the actual constitutional extent of its powers? Since Senator Rick Scott (R-FL) is so insistent on sunsetting laws, why not sunset the Supreme Court itself? If judicial review and the current format of the Supreme Court (nobody ever said it must have nine Justices) is so absolutely critical, surely Congress will come together in a bipartisan fashion to actually properly grant that power to the Supreme Court in an official capacity via a constitutional amendment? Consider it a modest proposal.

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[1] Url: https://www.dailykos.com/stories/2023/5/4/2167521/-We-Have-an-Ongoing-Constitutional-Crisis-in-America

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