Tag Archives: United States Constitution

SCOTUS and the coming age of Hypocrisy

Law, Philosophy, ,
The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

With the news that the Gov. of California is thinking of using the Texas anti-abortion law as a blue print for an anti-assault gun law I’ve heard from several sources the idea that SCOTUS will be faced with the problem of how to up hold one while striking down the other. While it maybe a little difficult anyone who has studied the history of the court knows this will not be the first time SCOTUS has faced this problem. I, for one, see this as a golden opportunity for the ‘Textulests’ and ‘Originalist’ of constitutional legal theory. Both of these philosophies have a fundamental aversion to the concept of “Implied Rights”.

Before we dive deeper let me give you my understanding of “Implied Rights” as it deals with the Constitution. For me there are basically two kinds of “Implied Rights”. In both cases the right is not enumerated, stated explicitly, in the text of the constitution. The first kind of “Implied Right” is of the kind that if the right didn’t exist, then an stated right would be functional meaningless. A good example of this is the “Implied Right” to have a vote counted. The right to vote assumes that once a vote is cast it will be counted, otherwise the casting of the vote has no reason to be. The next “Implied Right” is much more nebulous. This is the right of liberty in our person. This is the right that is at issue with ‘Roe vs. Wade’. The right to liberty is not expressly stated in the constitution.

The closest the Constitution gets to granting the right to Liberty is in the Preamble where is states the Constitution is established to “Secure the Blessings of Liberty.” The inalienable rights are given in the Declaration of Independence, not the Constitution. An while SCOTUS has stated the Declaration is part of our fundamental national law the Constitution takes no note of it. In my view to exclude the Declaration would make a mockery of the Constitution, it is quite possible for some future court to do that. So where does that leave us with the new Texas legal theory?

Just this: the Texas law deals with an “Implied Right” and the proposed California law deals with an enumerated right (the Second Amendment). All SCOTUS needs to do is find some reasoning that says that “Implied Rights” don’t get the same degree of protection, if any, as “Enumerated Rights”. This would be a very interesting slippery slope to go down an I invite you, my dear reader, to think upon all of your ‘Rights” that an just an “Implied Right” and not explicitly stated in the Constitution.

Lets see what the “Trump” Court decision is.

Ending the Electoral College

Philosophy, Politics,
Constitution of the United States of America

For the past several weeks we have been hearing about getting ride of the Electoral College. This is not going to happen. Why do I say that so emphatically? With such certainty? Easily I know both why we have the Electoral College and just how hard it is to amend the Constitution. Let’s start with the hard and go to the why.

First, to amend the Constitution (see Article V) you need to get 2/3 of both houses of congress (292 in the House and 67 in the Senate) to agree to the amendment. Not easy to do. Don’t believe me just look into the history of the effort to repeal Prohibition, something much easier for people to understand. Next you need to get 2/3 (34) of the States to agree to the amendment. Just think about it for a moment, you are asking the 17 of the to give up that which makes their votes significant. You are asking them to accept the tyranny of the populous (read big) states.

So that is the hard, now the why. Why did we create the Electoral College in the first place? We did it because the low population states, states as different as South Carolina and New Hampshire. States who have only their small size in common. They were concerned that Pennsylvania, New York, and Virginia could elect the president with just a little help from states like Massachusetts and New Jersey.

Additionally the writers of the Constitution were quite concerned about rule of the mob. They wanted some way to check the popular vote when it might select a demagogue. Except for state law Electors are free to vote for who ever they want. Even someone who was not even on the ballot. This have never been done but it is possible.

So, what can we do? Right now there is a movement to get the several States to pass a law that directs their Electors to vote for who ever wins the majority of popular vote nation wide. I do not agree with this just on principle. I do not like, fundamentally, ‘winner take all’ elections. I recommend a law that would proportion a state’s elector votes. This would still keep some protection for the small states while eliminating most of the problem we have now.