Do you remember those cartoons that used to (still do as far as I know) appear in the newspaper and magazines? “How many things can you find wrong with this picture?” That’s what Ruth Marcus’s recent Washington Post column, the latest mourning prospective Supreme Court decisions, in this instance a decision on 2nd Amendment issues, reminds me of:
The Constitution is not a suicide pact, Justice Robert H. Jackson wisely observed in a 1949 free-speech case. As the Supreme Court prepares to decide its first gun rights case in a dozen years, an updated version of Jackson’s motto should be: The Constitution is not a mass suicide pact.
That is, the protections of the Bill of Rights, including the Second Amendment, need not be interpreted in a way that forecloses reasonable limits and regulations. On that score, it’s worth quoting Jackson’s admonition in full: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.â€
There have been few times in the history of the Supreme Court when its doctrinaire logic was more in need of tempering and practical wisdom.
Any day now, the court is poised to decide New York State Rifle & Pistol Association v. Bruen, a challenge to a New York law requiring that people seeking licenses to carry a concealed handgun show “proper cause,†defined as “a special need for self-protection.â€
I do not understand the legal intricacies of the decision the justices have before them and I doubt that Ms. Marcus does, either. I presume it’s the vibe of the thing that bothers her.
Here’s my point. In a common law system judges are empowered to interpret the law according to precedent and legal principles and in some cases the law simply does not apply to the situation. In the absence of applicable precedent the judges are not empowered to decide what the policy should be and rule accordingly. That smacks of a civil code system. In a civil code legal system (as prevails in almost all of the world) the law always applies to every situation and the judge’s job is to determine how.
Under our legal system while it’s true that the Constitution is not a suicide pact it’s not an Etch-a-Sketch, either. Making policy is the responsibility of the elected branches of government—the executive and legislative. If the legislative branch refuses or can’t enact the necessary law, it’s not up to the Supreme Court to do it for them. The law doesn’t get enacted.
I think that’s a good part of the blinding rage that so many progressives have about the Supreme Court today. Over the last 50 years they’ve become accustomed to the Supreme Court doing for them what they couldn’t accomplish through the legislature and, now that the ideology of the Supreme Court has shifted, they feel that something they own has been taken away from them.
There’s something we should all keep in mind. Under our legal system when the courts routinely cast away precedent and legal principle in the interest of accomplishing a social good, it erodes the rule of law. Casting that as some part of the democratic process is mistaken. It’s mob rule.
“Over the last 50 years they’ve become accustomed to the Supreme Court doing for them what they couldn’t accomplish through the legislature and, now that the ideology of the Supreme Court has shifted, they feel that something they own has been taken away from them.”
I think it goes further. The writers of the Constitution assumed that each branch would want to hold its power. They didn’t anticipate that the legislative branch would cede control – read: accountability – to bureaucrats and courts. The legislative branch is where people go to make money now, not legislate in a statesmanship-like manner. .
I would say power has been ceded to the executive branch and the courts rather than bureaucrats but that may be quibbling. Nature/power abhors a vacuum so if the legislators wont do their job I think you should expect the other two branches to take over. Not how things were intended but it is where we are.
Steve
The Warren court began the practice of overturning precedents it didn’t like, and stretching the language of the Constitution. School prayer is a case in point, where the establishment clause was given a very expansive interpretation. Especially since several states including Massachusetts had established churches when they ratified the Constitution, and they kept them for years afterwards. Roe v. Wade was based on a “penumbra” somehow implied in the Bill of Rights.
We are way beyond any originalist interpretation now. The Supreme Court is as thoroughly politicized as the Congress and Presidency, and that will only get worse.
NY defended its “may issue” policy to the SCOTUS by explaining that it allowed local governments in more rural areas to liberally issue concealed carry permits, while urban officials can deny them. I suspect in any other area of policy besides guns, Marcus would decry the racist underpinnings of such discrimination.
New York deserves to lose. A basic component of modern administrative law is that agencies can exercise discretion, but they have to have rules that identify the considerations which govern that discretion and findings. How else can one know if licenses are given based upon race, religion or political persuasion?