There is nothing that the conservative bend of mind can not screw up and screw up badly. The quest by the Religious Right to overturn Roe v Wade is central example of this. Even though the nation is equally split (with a general slight edge to allowing women to control their own reproduction) the Religious Right has been pushing to have more and more conservative Justices appointed to the High Court. The goal being to finally get the five votes necessary stick a finger in the eye of more than half the nation and remove a woman’s right to choose when and if she would have a child.
This opened the door to other conservative interests and saddled us with Justices that talk about nonsense like "original intent". I’ve written about how this is really a veiled attempt at case law nullification, as going to the original intent allows Justices who are so inclined to ignore stare decisis (settled law) and take a weed whacker to our understanding of the Constitution based solely on their impression of what the original intent of the Framers was.
"Originally posted at Squarestate.net"
All this leads us the recent escapades of the most conservative members of the Court. It is widely reported that Chief Justice Roberts was a headliner at a fund raiser for the American Standard, an ultra conservative magazine where many of the tropes which infect this nation from the right are born and repeated ad nauseam.
However it is the remarks of arch-conservative Justice Antonin Scalia which have me despairing for our nation today. According to Think Progress, last Friday evening Justice Scalia said:
"There’s very little that I would change," he said. "I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously."
That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.
"We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution."
On the one hand there is something to be said about no capriciously changing you constitution. We have seen the knots it can tie state government in and the way that it allows a bigoted majority to deny rights to those they are bigoted against in the way the initiative process has been used to deny gay citizens marriage rights.
On the other, though, this idea that we are some how less than what the Framers wanted because we decided to put the election of Senators directly in the hands of the people (by means of the 17th Amendment) instead of leaving it up to the State Legislatures to elect Senators.
There is also the really troubling use of the dog whistle phrase "states rights" in Justice Scalia’s statement. States rights have long been a calling card for racist resistance to Civil Rights Era laws. The argument goes that by insisting that African American kids be integrated with white kids the states are having their rights under the 10th Amendment trampled. To hear them coming from a Supreme Court Justice, even a hyper-conservative like Justice Scalia, is nearly frightening.
We’ve seen other conservatives talk about repealing the 17th Amendment. Gov. Rick Perry of Texas, well known for his flirting with the idea of secession, has spoken positively of the idea, as well as Senator Elect Mike Lee of Utah (though I am betting that by the time Sen. Elect Lee is up for reelection he will have changed his mind).
If you think the level of out of state influence is high now in Senatorial elections, just try to imagine what it would be like if legislatures once again had the control who would represent their state for six years at a time. Just from a point of view of cost it will always be much cheaper for business or other interests to convince 100 or less people to support their candidate rather than the hundreds of thousands or even millions who currently elect Senators.
The opportunity for corruption would be massive and it was back when this was the standard way that Senators were elected. This is one of the problems with the whole idea of original intent. The Amendments to the Constitution were put in place to solve problems that cropped up from the time of the founding of our nation. Even the Bill of Rights was a rewrite from the original Articles of Confederation.
The first ten amendments were added by the Framers to clarify and extend the rights they thought they had nailed down in the Articles. The years between the writing of the Articles and the Constitution showed that there were issues that needed more and specific attention. The Amendments since then have all been in the same vein, a response to events that had occurred in the time since the Framers ratified the Constitution.
Perhaps I am being too kind to Justice Scalia and those who want to repeal the 17th Amendment, but maybe they are unaware of the way things were before we changed to the popular election of Senators. The change was in response to the feeling that Senators were not really responsive to the will of the people but only the will of the powerful in their states, thus perverting the idea of democracy. I hope that this is the case rather than the other option which is they know and want the nation to return to a time when it was only the rich and powerful who had any type of serious voice in electing 100 of the most powerful people in the nation.
That we are seeing a Supreme Court where Justices are willing to openly support conservative organizations and talk in racist dog whistle phrases makes me tend to believe that the latter is truer than the former.
This is what we have come to by allowing conservatives to stock our highest court (and lots of the lower courts as well) with doctrinaire conservatives. They have not achieved their goal of making abortion illegal but they have managed to create a Court where politics is the order of the day rather than the interpretation of the law as it applies to the problems of the nation today.
The Supreme Court has the ability radically change the nation. We are in a time when it seems they are willing to do it, over the objections of long settled case law and the will of the people.
The floor is yours.