Monday, January 09, 2023

Three Decades of SCOTUS Rewriting the Constitution: The Rule of People or the Rule of Law?

By Eric Segall

I started teaching constitutional law in 1991 just a little over thirty years ago and also the same year that Justice Clarence Thomas became a Supreme Court Justice. We both have life tenure, which is wrong, but at least I have no power and little influence, whereas tragically, Justice Thomas has lots of both. 

Although the Constitution has not been amended since 1991, with the exception of the never-litigated 27th Amendment, constitutional law has changed dramatically since my first year of teaching and Thomas's first year on the Court. Below is a partial list of these major changes that demonstrates, when it comes to the Supreme Court, we are governed by the rule of people, not the rule of law. Keep in mind the list does not even include any cases dealing with criminal law or criminal procedure, where there have been many major changes as well.

1991: The only government aid that could constitutionally be provided to private religious schools was secular textbooks, diagnostic and standardized testing, and bus transportation to and from school. No educational equipment or supplies could be given by the government to religious schools other than secular textbooks.

2023: Not only can the government provide virtually anything of value to private religious schools as long as what is being given is also provided to secular private schools, but if states decides to assist private secular schools they are now constitutionally obligated to make the same aid available to religious schools. 

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1991: Abortion was a fundamental right pre-viability and virtually all restrictions on that right applicable to pregnant adults were invalid.

2023: The Constitution provides no special protection at all to adults seeking abortions. None.

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1991: The First Amendment did not prohibit states from requiring their own workers who received benefits as part of a collective bargaining unit to pay unions for the portions of their dues reasonably allocable to such services, even if the employees didn't join the relevant union.

2023: The First Amendment prohibits states from making their own workers pay union dues if they decide not to join the union. Union dues equals speech. 

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1991: The Second Amendment only applied to weapons used by the militia and, this was a bit fuzzy, but probably only when used for militia purposes.

2023: The Second Amendment applies to all arms in common use and is not limited to militia use but also applies to personal self-defense and hunting. The first part of the text of the Second Amendment has been effectively deleted from the Constitution by the Justices.

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1991: The free exercise clause did not protect individuals (or companies) at all from substantial burdens on their religious exercise caused by generally applicable laws.

2023: The free exercise clause applies....well it is unclear, but it now provides so much protection that all that is left is for the Justices to expressly overturn the rule cited above. And, by the way, while the free exercise clause has been armed to the teeth, the Justices have effectively deleted the establishment clause from the first amendment.

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1991: The states may criminalize private same-sex intimate relations in the privacy of the home.

2023: The states may not criminalize private same-sex intimate relations in the privacy of the home.

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1991: Same-sex marriage is not a constitutional right.

2023: Same-sex marriage is a constitutional right.

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1991: Congress can take away a state's eleventh amendment immunity when exercising its commerce clause powers as long as it does so through an unmistakably clear statement.

2023: Congress cannot take away a state's eleventh amendment immunity when exercising its commerce clause powers, period.

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1991: There is no state sovereignty limit on Congress' power to commandeer state legislatures and state executives into assisting with the enforcement of federal law.

2023: Congress may not commandeer state legislatures or executives to assist with the enforcement of federal law unless (maybe) it does so through a law that applies to both the states and  non-government entities or people. For the record, this is a made-up exception to a made-up rule found nowhere in the Constitution’s text.

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1991: Congress may require that corporate expenditures on elections be made through segregated funds.

2023: Corporations have the same rights to make expenditures on elections as individuals. Money equals speech.

I could go on and on and on but I think you get the point. These ten major changes in constitutional law (there are many more), just since the time I started teaching, have had enormous consequences for the American people. And it is all but certain that this June the Court will overrule 45 years of law to prohibit all affirmative action. 

These changes occurred because of a change in the Court's personnel, not due to any change in text or new historical discoveries. What changed was not law but the Justices' values and ideologies. But if judges are allowed to and do make such substantial changes in the law due only to different personal preferences than prior judges, do we have a correct understanding of how judges are supposed to act? When precedent means so very little, are we governed by the rule of law or the rule of people? 

I think you know the answer.

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