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Supreme Court Prefers Self-Governance

July 3rd, 2015 by dk

As the Supreme Court wrapped up its season, the swings and the misses behind the final scores can get lost behind the headlines. Chief Justice John Roberts continued his fierce protection of the institution he’s been charge to lead.

In his dissent of the majority’s ruling to allow same-sex marriage in all 50 states, Roberts wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

He’s almost right. “Life, liberty and pursuit of happiness” is in the Declaration of Independence, not the Constitution. Same with “all men are created equal.” The Constitution is a mechanism by which we hope to attain our Declared and Independent ideals.

What Roberts may have meant, if his drafting was inartful, was that this ruling and others like it should invoke no celebration for self-governance. If the Supreme Court’s role is to call strikes and balls, Roberts may rightly bemoan the electorate’s modern refusal to swing the bat.

Roberts would have preferred that states settle their own scores with citizens seeking to marry. In another dissent issued the next day, he rehearsed how the system is supposed to work: “The [17th] Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. What chumps! Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’? The Court today performs just such a magic trick with the Elections Clause.”

And yet, two days earlier, he saved Obamacare by using the same magic trick by interpreting the phrase “established by the state” to mean “established by the state or the federal government.” Roberts rightly scolded Congress that the Affordable Care Act offers “more than a few examples of inartful drafting.”

Congress could have remedied the problem by simply amending the bill, but they refused. They could have bowed to public opinion (as they and then-President Clinton did just a few years ago) and drafted a New Defense of Marriage Act to right the wrong of marriage inequality, but they didn’t. The bat rested on the shoulder.

In both cases, Congress left the legislating to the Supreme Court, which is what Roberts insists we should not be celebrating. And again, he’s right. Congress is broken and self-governance is imperiled. The president pledges to improve people’s lives with his phone and his pen. The Supremes willingly inject common sense to inartful legislative prose. The people are not consulted, much less represented.

How did 435 representatives become so unrepresentative? In a word, gerrymandering.

For those unfamiliar with the concept, gerrymandering is the modern version of ballot stuffing, but it’s perfectly legal because the “stuffing” now includes each vote’s voter. Stuffing your ballot boxes is not legal, but stuffing your district with your preferred voters is.

Arizona voters decided they’d had enough of that, so they drafted and passed a referendum that created an Independent Redistricting Commission. The lawmakers sued, citing the Constitution’s words, but they lost.

Justice Ruth Bader Ginsburg wrote the opinion, insisting that the referendum was a legitimate legislative tool. When the people legislate for themselves, they are a legislature. Arizona voters prevailed without “the arduous, decades-long campaign” that Roberts would have preferred, but the system cannot fix itself when the system is what’s broken.

If Roberts chooses to celebrate the Constitution, he may find comfort in its preamble. His court can play a significant role to “ensure domestic tranquility.” States will follow Arizona with similar election reforms. People can marry whomever they choose. Those who are sick will get affordable care.

The mechanics of governance may not have worked as well as Roberts would have liked, but spirit of the Constitution prevailed. “We the people” are forming a more perfect union.


Don Kahle ( writes a column each Friday for The Register-Guard and blogs

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