We’ve heard repeated claims over the course of the Trump presidency that we’re facing a constitutional crisis. We’ve been told that everything from executive orders to impeachment proceedings was such a crisis. Those claims were utter nonsense.
But what about when the Constitution is ignored rather than respected? In that case, it will cease being a guarantee of our rights or a constraint on government overreach. Under those circumstances, the Constitution will no longer have any bearing on how we conduct ourselves as a nation. It will become nothing more than an interesting historical document. That will be a true constitutional crisis and it’s rapidly approaching.
The Supreme Court is supposed to be our bulwark against encroachments on the Constitution. The justices are not only to be the interpreters of the Constitution, but also its guardians. They are the robed scholars intended to understand the Constitution inside and out and to ensure the nation remains faithful to it. They are granted lifetime appointments so that they may remain above petty politics. Justices are intended to be free of party affiliation so that they may defend the Constitution — independent of outside influences.
Somewhere along the line, the Supreme Court decided that it not only wanted to keep the Constitution relevant, but it wanted the Constitution to evolve with the times. Suddenly, we had an evolving Constitution (I hate the term “living Constitution”). We’ve now been introduced to “penumbras” and “emanations” — which are just legal-speak for, “We know what the Founders meant, even though they didn’t write it down.” And with that, fidelity to the Constitution has been lost.
Let’s compare our approaching constitutional crisis to that of an approaching comet. Astronomers assure us that avoiding a fatal impact from a comet or asteroid is relatively straightforward — if the threat is detected early enough. With ample warning, it can simply be nudged off course. However, the longer it remains undetected, the more difficult it becomes to redirect.
I submit that threats to our Constitution have been approaching for generations. Either through dereliction or malicious intent (willful violation of their oaths), the Supreme Court justices have failed to interdict the approaching threats when it would have been relatively easy. Now we’ve reached a point where the Constitution is becoming irrelevant, and it’s not clear that the Supreme Court has any interest in defending it.
A brief history will help to illustrate how far we’ve strayed from the meaning of the Constitution. I’ll start with Roe vs Wade. The court could have simply ruled that abortion is not a right guaranteed by the Constitution. It was the business of the states and the Supreme Court would not engage in the argument. Instead, the Supreme Court found a new right, hidden in a secret compartment somewhere in the Constitution. And just like that, the court announced, “We are open for business! If you’ve got something you can’t get passed in Congress, come talk to us. Maybe we can help.” The Constitution evolved. Deflecting the threat would have been easy in 1973, but the court became a political player instead.
Fast forward to 2012. The court had been playing around with which laws it likes and which it doesn’t for years. But in 2012, one of its most notorious rulings landed on the American people. The Affordable Care Act (aka ObamaCare) had been challenged on the grounds that it was unconstitutional for the government to require citizens to buy products from private companies — and fine them if they failed to do so. As part of the argument supporting ObamaCare, the drafters of the legislation argued that the fine was not a tax. In spite of this, the court ruled that ObamaCare was constitutional because the government has the right to levy taxes, and the fine was really a tax, even though the legislation said it wasn’t. At this point, the Supreme Court wasn’t just picking the laws it liked and disliked, it was writing the legislation itself. It was doing so by saying the legislation meant something other than what it actually said. That meteor was getting kind of big in the sky — No?
Let’s jump forward to the Trump administration. Since the judicial branch has become a political player, judge shopping has become standard practice. If there’s something your side wants from a court, you may simply select a sympathetic judge — rather like an a la carte menu item. That has brought us the phenomenon of rogue judges. It became commonplace for district judges to issue nationwide injunctions against presidential orders — regardless of the constitutionality of those orders.
We also saw judges unilaterally appropriating the powers of the Department of Justice (DoJ). The DoJ has the sole authority to decide when, and when not, to prosecute someone. Yet when DoJ decided to drop charges against Michael Flynn, Judge Emmet Sullivan decided to appoint his own prosecutor and continue the proceedings against Flynn. He became judge, prosecutor, and jury — all wrapped up in one robe. As judging goes, what could be more out of control (rogue) than that?
The Supreme Court could have reined in rogue judges with clear rulings about the inappropriateness of their behavior. But it didn’t, and equal justice under the law is no longer a given. The comet was still approaching.
The end of Donald Trump’s first term brought us to the election of 2020. One of our most sacred rights is the right to vote in free and fair elections. In response to COVID-19, numerous election officials announced their intent to conduct the election contrary to applicable laws. The Supreme Court had a chance to say no. But instead, it took a pass. After the election, with a mountain of irregularities, the court again had a chance to ensure election integrity – through a public hearing of the evidence and unbiased adjudication of its implications. The Supreme Court again took a pass. In doing so, the justices effectively announced they had no interest in defending the citizenry’s right to fair elections. Let that sink in — Our constitutional guardians opted out of defending our constitutional rights. How honorable of them. That comet is getting awfully close!
It’s now 2021 and we’ve seen our free speech rights threatened by censorship. Our right of assembly has been suspended for COVID-19 lockdowns. Members of Congress have called conservatives “insurrectionists” and demanded our re-education — for having the temerity to protest. The Department of Homeland Security has even issued a domestic terrorism alert because “right-wing radicals” might question the authority of the president. Is it possible that the Patriot Act may be used to surveil and curtail conservative political movements? Before you say no, remember the IRS targeted the Tea Party and the FBI spied on the Trump campaign. That approaching rock is starting to block out the sun.
Lawsuits challenging censorship and domestic surveillance are undoubtedly on their way. Will the Supreme Court choose to get involved? Or will it take a pass again? Isn’t it disturbing that this is even a mystery? Time is short. The crisis is here. The justices may either fulfill their oaths, or the rest of us will need to brace for “deep impact.”