On October 18, 2018, I wrote the piece below for this Blog. I dated the fictional and what I thought satirical letter to my Granddaughter August 24, 2045. Boy was I off the mark as that dark future came much sooner than expected in many of its doctrinal predictions (also I wrote this before Justice Barrett was nominated to the Court). This piece is sadly more timely today than when I wrote it so thought I'd post it one more time. Constitutional change can come very quickly, and as I've paraphrased Richard Posner many times, if changing judges changes law, do we know what law is?
The letter is exactly as I wrote it almost four years ago.
Letter to my Granddaughter, 8/24/2045
As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago. Before Justice Kavanaugh was confirmed to the Court giving the Trump Party its solid majority, the Second Amendment had been used by the Court only twice to strike down gun control laws, and both were total bans on handguns. We had terrible gun violence under that regime, but nothing like we have today. What role the fundamental right to own easily manufactured 5-D guns and death lasers has played in the escalating violence is an issue some folks debate, but there was a time when state governments could regulate these terrible weapons. Alas, as the Gorsuch Court thought it was moving us forward we in fact are back to the ancient days of the Wild West.
There was a time when the Constitution did not require state and local governments to make religious exemptions to generally applicable laws, and the issue of whether to grant such exemptions was left to the states and the People. It was not a surprise when Justice Barrett wrote a majority opinion overturning the Smith decision. What was more of a surprise in the 2030's was the Court creating a strong common law of First Amendment exemptions basically negating for most purposes anti-discrimination laws at both the state and federal levels. This may explain why people of color, women, and gays and lesbians are even more out-of-power today than when I last taught constitutional law in 2027. It may feel like claims of "religious liberty" naturally Trump all other regulatory measures, but alas it wasn't always the case.
There has been a lot of discussion recently about our low voting turnouts, dipping into the low 20% of our population in the last few elections. Of course the Trump Party, along with its partisans on the Court, are happy to make it more difficult for everyone but the wealthy to vote. When the Court upheld Alabama's face scan technology requirement, which to work required a $2,000 face scan injection, the poor became almost completely disenfranchised, as you know. When you teach this subject, remember there was a time not too long ago when the right to vote triggered serious judicial scrutiny, not the rational basis test the Court now employs to review voting prohibitions.
I know that affirmative action was extinguished by the Court over 20 years ago pursuant to the Court's mandating of color-blindness and prohibiting all considerations of race in all governmental programs. But you should ask yourself, and your students, how that principle stands along the Court's decision in Barbra Smith v. Alabama where the Court held that state universities could have a quota of fifty percent white men given that white males had been allegedly discriminated against from the mid-1970's to 2025. I know the Court limited that principle to the next twenty-five years, but still the tension should be clear.
I don't envy you having to teach Planned Parenthood v. Pence, Jr.. When the Court returned the issue of abortion to the states in a series of 2022-2025 decisions, federalism was at the forefront of Justice Alito's opinions. "Let the states decide" was the rallying cry. Those decisions of course were consistent with Justice Thomas' final set of decisions holding that Congress could only use its commerce clause authority when it presented clear and convincing evidence that the matter regulated directly affected the commerce of every single state. Thomas' preference for local rule was clear. Yet, somehow, when Congress passed the National Right to Life Act making abortion a federal crime, the Court deferred to Congress' finding that human life began upon a couple's first kiss, and exterminating the results of that kiss could cost the economy billions of dollars. I recommend Justice Kagan's final dissent to make the inconsistency clear. She lamented "federalism for thee but not for me."
Finally, I need to say something about the New, New, New, Ultra New Originalism. There was a time long before I went to law school when people, mostly those in the old Republican Party, thought judges shouldn't strike down laws absent clear proof those laws violated the original intent or meaning of the Constitution. Of course, as I traced in my final book Originalism as Trumpism, by 2027, it was well accepted by six of the Justices that the proper inquiry for originalists does not require historical investigation into ratification eras or even the use of old dictionaries to ascertain the original public meaning of the text. The new test, asking what would Trump/Pence/McConnell think if they were still alive, has the benefits of a closed inquiry into the minds of three people, thus evading indeterminacy critiques. I know that the infamous "living constitutionalists" who fought that change are now a marginalized minority but you may want to go back and read some of their work, if nothing else for an accurate historical perspective. I recommend Bobbitt, Dorf, and Strauss.