SCOTUS Proves Once Again It Is the Wrong Body to Determine Federal Powers

A leaked draft of an opinion written by Justice Alito of the U.S. Supreme Court suggests the Court is prepared to strike down the 1973 Roe v. Wade decision that found unconstitutional state laws prohibiting abortion. The ruling would also strike down modifications made in the Planned Parenthood of Southeastern Pa. vs. Casey decision of 1992.

If the final decision is substantively the same as the draft, it will continue a process of “re-federalization” that has been gaining momentum since the 2016 election cycle. Many viewed the Donald Trump presidency as divisive, but Trump’s election was more revelatory of existing divisions than divisive itself.

Long before Trump declared his candidacy, many states had already effectively nullified federal marijuana regulations and immigration laws. Talk of Texas seceding from the union had resumed during the Obama administration; similar rumblings in California began soon after Trump was inaugurated.

What has inspired the most rancor on both sides are cultural issues: abortion, what is taught in schools, who is allowed to get married, who is and is not required to bake the wedding cake, and who is and is not allowed to cross the borders, immigration being both a cultural issue and an economic one.

There is also an underlying dissatisfaction with economic outcomes, which are most affected by the monetary system and the New Deal regulatory structure, although neither conservatives nor liberals seem anxious to address either.

None of the federal powers above, including regulating immigration, are expressly delegated to the federal government in the Constitution. They were all “discovered” by the Supreme Court using reasoning arguably as dubious as that employed in Roe v. Wade.

The whole idea of judicial review for constitutionality is a suspect one. The reason for having a written Constitution in the first place is to ensure there is no confusion about what powers the federal government has been delegated and not delegated. It should not be necessary to hold a legal proceeding, followed by a lengthy written decision by the “finest legal minds in the land” to determine whether or not a given power is delegated to the federal government in a five-page document.

If there is any doubt at all, an amendment should be offered. That is the only honest way to obtain consent of the governed for a new power. Acquiring power through the court system is a transparent attempt to do so without the consent of the governed, with knowledge aforethought that you are imposing authority that would not be granted voluntarily.

Article V of the Constitution provides the means by which consent of the governed is obtained by the federal government. It is not obtained through federal elections. They merely determine who exercises power, not what power is exercised.

Neither are amendments ratified by a simple majority of United States citizens. They are ratified by a supermajority of the states, who are the parties to the Constitution. They formed a federal government, not a national one, for the express and stated purpose of preventing a simple majority of all U.S. citizens from ruling over a unitary nation.

This is clear from notes on the constitutional convention taken by James Madison and Robert Yates. Forming a national government with the states as mere subdivisions was thoroughly discussed and rejected. The union would be a federation of states with limited powers delegated to the federal government and all others retained by the states or the people.

This is more than just academic pedantry. The United States is a boiling cauldron of political hatred about to boil over. Once the abortion decision is official, we can expect a repeat of the rioting we saw in 2020 over George Floyd. We saw even the typically orderly right give into similar behavior last January. There is no reason to believe things will simmer down anytime soon.

Article V provides a way out of this. Offering amendments to grant the federal government those powers it has illegitimately acquired in the past through the courts will result in one of three outcomes for each disputed issue: 1) the amendment will be ratified as offered, 2) the amendment will be revised through negotiation into something a supermajority of states accept and then ratified, or 3) the amendment will fail completely, making clear to all this is a power that must be reserved to the states.

Perfection is unattainable in any political process. But any of the three outcomes above would provide a pressure valve on the issue in question. Amendments should be offered for all powers obtained by the federal government through the courts in the past, no matter how long ago the acquisition occurred: regulation of abortion, immigration, healthcare, education, and marriage included.

While we’re at it, why not settle the very first constitutional crisis the way it should have been settled: an amendment granting the government the power to incorporate a bank.

Given the exponential growth of the federal government over the past one hundred years, dozens of amendments should have been offered during that period. Yet, since 1933 only six have been ratified, one of those being what would have been the Second Amendment if ratified when originally proposed in 1789.

Both conservatives and liberals are reluctant to pursue the constitutional amendment process because it is difficult by design. But there are only two ways to exercise power: with the consent of the governed and without it. Americans have chosen the latter over the past century, taking the relatively easy, dishonest route to power through the court system. That has led us to where we are now: at each other’s throats.

We would be wise to retrace our steps and determine the federal government’s powers legitimately before we have a real insurrection on our hands.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

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