Opinion: Thomas Jefferson has a clear message for the Supreme Court about the Constit

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Opinion: Thomas Jefferson has a clear message for the Supreme Court about the Constitution and ‘originalism’
By: Donald F. Kettl - Market Watch News - 10-31-20
Re: https://www.marketwatch.com/story/th...more_headlines

Consider this thread Part 1 of 2 (see next link for part 2):

Note: Jefferson had a lot to say — and some of it is inscribed on the walls of the Jefferson Memorial

Photo link: https://images.mktw.net/im-251758?wi...23474178403755
A look inside the Jefferson Memorial. AFP VIA GETTY IMAGES

The coming few weeks will be of monumental importance for American democracy. That’s not just because this is the MAGA-election of a lifetime. It’s because, in the background, we’ll be fighting over mega-issues that will shape the course of American governance for far longer than a president will serve.

Whether it’s how the states count the votes or how we decide the future of Obamacare, the big question is just who gets to decide. In reaching for the answers, we’re looking to the Supreme Court and for guides from the nation’s founders. But the big puzzle is how a Constitution written 233 years ago ought to map what we do today.

Thomas Jefferson was one of the country’s most thoughtful founders. He wrote for decades about almost everything, although he wasn’t in Philadelphia to help write the Constitution (he was serving as ambassador to France). For a sharp insight into his thinking, it’s worth a trip to the Jefferson Memorial in Washington.

Two engravings from Jefferson’s work deserve a careful read today. In the memorial’s rotunda is a quote from his letter to a Philadelphian who signed the Declaration of Independence, Benjamin Rush in 1800, where Jefferson wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” Basic ideas, Jefferson believed, were fundamental and inviolable and eternal in the American experience.

But then there’s his 1816 letter to his fellow Virginian, Samuel Kercheval, which the memorial captures on its southeast portico. “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind,” he wrote. As people become “more enlightened,” the inscription continues, “institutions must advance also to keep pace with the times.”

And Jefferson went on, in a passage that didn’t fit inside the memorial. “Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched,” he told Kercheval.

Jefferson and the other founders never intended the Constitution to be frozen in stone as a perpetual artifact. James Madison, the Constitution’s principal author, wrote to Jefferson in 1790 that regular changes would prove “a salutary aid to the most rational Government in the most enlightened age.”

They were practical men who wrote the Constitution to solve practical problems, and they expected new problems would require fresh solutions—built on fundamental American values.

“Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched.” by: Thomas Jefferson

And that sets up the most fundamental issue we face—perhaps even more fundamental than the question of who is elected president: Especially for conservatives, on what side of the Jefferson Memorial do they chose to stand?

On one side, there’s the reverence for “originalism,” which holds that the Constitution meant what it said at the time it was written, and that we shouldn’t tinker with it. There was no greater advocate of originalism than Justice Antonin Scalia, who said that the Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” Justice Amy Coney Barrett is picking up Scalia’s banner in arguing that the Constitution’s “meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

On the other side, there’s the argument that, as we learn more, we ought to do better. The founders, after all, established racial inequality in their original decision in writing the Constitution to count black slaves as 3/5 of a person, and it took an amendment to enshrine freedom of religion and of speech and a later amendment to establish equal protection under law. Even Scalia struggled to reconcile the contradictions captured on the walls of Jefferson’s memorial. Since then, his critics have argued that Scalia’s embrace of originalism was nothing less than an effort to politically weaponize the courts to advance the conservative policy agenda.

That’s spilling over to the festering debate about who gets to count the votes. It’s a peculiar quirk of the American system that state officials set the rules on voting for federal officials. But in recent weeks, cases have been bouncing to the U.S. Supreme Court about whether states can grant extensions for the vote counting. Justice Brett Kavanaugh was among the majority in a Wisconsin case that ruled that state legislatures, not the courts. make the central decisions on vote counting. However, he was also on the legal team for the Republicans in 2000, where the Supreme Court ended Florida’s count and gave the victory to George W. Bush. On which side does originalism stand?

On Nov. 10, the Supreme Court will hear a case on the constitutionality of Obamacare. The Court ruled in 2012 that the program’s mandate to buy health insurance was a tax but that the tax was constitutional. But then in 2017, the Republican-controlled Congress slashed the tax to zero, effectively ending the mandate.

With the mandate gone but connected to so many other provisions of the Affordable Care Act, Texas Attorney General Ken Paxton argued, the program itself ought to be struck down. The founders never considered whether health care was one of Jefferson’s unalienable rights or whether taxes could be used for purposes other than raising money, so there’s not much “orginalist” guidance for the Court’s health-care debate.

And then there’s the coming battle over President Trump’s Oct. 21 executive order to strip civil service protection from tens (possibly hundreds) of thousands of federal employees. In a stroke, the president is claiming the right to make these employees “at will” so they can be dismissed without cause. It’s a dramatic shift from a system based on merit back to the spoils system of the 19th century. The president claims the right to do this based on the notion of vast executive power—and that the Constitution gives the president the power to fire anyone he wishes.

The president is asserting powers that go beyond the literal language of the Constitution but which his legal advisers claim the Constitution gives him. This is about much more than making it easier to fire federal workers. It’s a battle over a vast expansion of executive power, at the expense of Congress. Where would Jefferson, Madison, and the other founders come down on this central debate about the balance of power between the executive and the Congress?

So this election is not only about who will become president and control the Congress. It’s about the far deeper—and longer reaching—debate about just who governs in America. It’s a basic question: On what side of the Jefferson Memorial will everyone—liberals and conservatives alike—stand?

By: Donald F. Kettl is the Sid Richardson Professor at the LBJ School of Public Affairs, University of Texas at Austin. He’s the author of “The Divided States of America: Why Federalism Doesn’t Work“.

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See next thread Titled: The U.S. is heading for a constitutional crisis—even if Biden wins

Boats

[Boats]

Opinion: The U.S. is heading for a constitutional crisis—even if Biden wins
By: Eric Posner - MarketWatch News (part 2) 10-24-20
Re: https://www.marketwatch.com/story/th...ns-11603311013

This is Part 2 (but I also found a Part 3 that may also result see the line below this thread - for the link). wel

The right has captured the Supreme Court, but has lost the battle for public opinion

Photo: https://images.mktw.net/im-247983?wi...95364238410596
The epigraph on the front of the U.S. Supreme Court building reads "Equal Justice Under Law." MARK WILSON/GETTY IMAGES

CHICAGO (Project Syndicate)—Since Donald Trump’s election in 2016, legal academics like me have been bombarded with emails from journalists asking whether the United States is undergoing or heading for a “constitutional crisis.”

Most of these queries have been motivated by the president’s norm-busting, including his interference with Special Counsel Robert Mueller’s investigation of Russian interference in the election, his verbal attacks on journalists and judges, and his efforts to launch investigations against his political opponents.

Comment: This crisis would arise from a tension that has existed throughout American history: namely, between the courts and a system of democracy that gives ultimate power to the people.

A constitutional crisis, properly understood as a turning point that might lead to collapse or transformation of the system, has not occurred. But such a crisis does now appear increasingly likely.

I am not talking about the election (though that could produce a constitutional crisis if the outcome is close, or in the unlikely event that Trump somehow refuses to leave office). Rather, I am referring to a crisis that could occur even if Trump loses. This crisis would arise from a tension that has existed throughout American history: namely, between the courts and a system of democracy that gives ultimate power to the people.

The Civil War, and the New Deal

There have been two constitutional crises in American history. Both of them involved a clash between the Supreme Court and elected officials backed by popular opinion.

The first began with the infamous case of Dred Scott v. Sandford in 1857. In that case, the Supreme Court held that African-Americans were not citizens of the United States, and that the 1820 Missouri Compromise—which had staved off civil war by providing a formula for dividing territory between slave and free states—was unconstitutional.

The court’s ruling inflamed tensions between North and South, and contributed to the Civil War, in part by blocking a path to compromise. The ensuing constitutional crisis outlasted the war by more than a decade, as the court continued to undermine legislation and constitutional amendments meant to protect freed slaves, and as Congress retaliated by stripping the court of jurisdiction.

The ultimate resolution confirmed the abolition of slavery and the union of the states, but preserved an apartheid system in the South.

If the Supreme Court issues still more adverse rulings against the ACA, the future not just of the ACA but of any ambitious progressive legislation will be in doubt.

The second crisis took place in the 1930s, when the Supreme Court struck down New Deal statutes meant to address the economic emergency of the Great Depression. In 1937, fresh from an overwhelming electoral victory, President Franklin D. Roosevelt proposed legislation to pack the court with pro-New Deal jurists. Though the bill was defeated, the court backed down, reversing its opposition to economic regulation.

Even after Roosevelt was able to fill vacancies and secure a sympathetic majority, the court would remain gun-shy for another 20 years.

The coming crisis
Given today’s heightened political volatility, there is no knowing exactly what shape the next constitutional crisis will take; however, the broad contours are coming into view.

As in the previous contests, the right has captured the Supreme Court, but lost the battle for public opinion.

Since the 1980s, conservative rulings have increasingly constrained national economic regulations—echoing the once-discredited approach of the pre-1937 Court—and created an individual right to gun possession, strengthened religious rights, overturned restrictions on campaign financing, weakened protections for racial minorities, and eroded abortion rights.

On the left, unhappiness with the court has been simmering since the 1980s, but two developments have brought the anger to a boil in recent years.

First, the Affordable Care Act (Obamacare), the signature progressive accomplishment of the last 20 years, has been placed in grave danger. The law was barely upheld by the Supreme Court in 2012, and since then has been battered by a variety of legal challenges in the lower courts.

If the Supreme Court issues still more adverse rulings against the ACA, the future not just of the ACA but of any ambitious progressive legislation will be in doubt.

Second, Democrats no longer trust Republicans to play by the rules with respect to judicial appointments, owing to the GOP’s turnabout on Supreme Court nominations.

Having refused even to hold hearings for President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016, citing the approaching presidential election, the Senate’s Republican majority has now rushed through confirmation hearings for Trump’s nominee, Amy Coney Barrett, less than a month ahead of the next election.

This bad faith, along with bad luck in the timing of Supreme Court vacancies, all but ensures that there will be a conservative court majority capable of blocking Democratic legislation for at least the next four years—and probably much longer.

Biden’s dilemma
The combination of a right-wing Supreme Court and perceived Republican bad faith has emboldened Democrats to play their own form of hardball. Many on the left want Trump’s opponent, Joe Biden, to commit to “packing the court” if he is elected. That would mean increasing the number of seats—presumably from nine to 13—so that four more justices can be appointed to create a 7-6 majority friendlier to a liberal agenda.

The significance of this proposal is hard to exaggerate. Roosevelt’s court-packing plan went down to a devastating defeat and caused lasting political damage to his presidency.

Court-packing is a radical act, a favored tactic of despots.

And the Supreme Court remains relatively popular among the public. Nonetheless, Biden, despite his moderate instincts, has not been able to distance himself from the idea, no doubt worried about blowback from the left wing of the Democratic Party.

But Biden’s problem is not with the left; it is, or will be, with the court. After all, his campaign has increasingly focused on promising health care and a stronger response to the pandemic—two areas where conservative judges have shown great hostility.

Thus, if Biden wins the election and obtains a majority in both houses—which he will need in order to implement any court-packing plan—he will face a dilemma.

If he tries to pack the court, he runs the risk of losing the support of moderate Democrats, deepening political polarization, and damaging the court’s standing in the eyes of the public. But if he does not, he may be rendered politically impotent.

Even Roosevelt was too embarrassed to call his bill a court-packing plan. Instead, he claimed that the aging judges throughout the federal judiciary needed to be supplemented by a younger cohort.

Biden, nowhere near as popular as Roosevelt was, has no good options but to hope that the conservative justices on the court show good sense and moderate their hostility to popular legislation and government action.

Chief Justice John Roberts has hitherto demonstrated that this is possible. But with the addition of Barrett to the court, Roberts could find himself in the minority. And if Barrett joins the other four hard-line conservatives in overruling the will of a democratically elected government, the ensuing constitutional crisis could take years to resolve.

Eric Posner, a professor at the University of Chicago, is the author, most recently, of “The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump” (All Points Books, 2020).

This article was published with permission of Project Syndicate—Is the Long-Awaited Constitutional Crisis at Hand?

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There is a Part 3 to these issues:

Titled: Here’s how the Supreme Court can protect its reputation amid political partisanship
Dated: 10-20-20
Here's the link if you want to read more: Re: https://www.marketwatch.com/story/he...ip-11603218964

Boats
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Personal after reading both points of view and the legal ramifications of both - it seems turmoil will take place just how bad and how the legal eagles see it will be the final ruling!
This is only if we abide by the Constitutional outlines and rules as they apply. But rules seem to be broken or altered at times to fit the issues of the day which may or may not apply to the world order today. I'm sure whatever the outcome there will be unhappy American's coast to coast. Much depends on how the transition goes and what give and takes have to be made legally by our political system as per the current rule of laws.

Boats