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Supreme Court Abandons Original Constitutional Aim of Protecting Minority Rights

Skidmore professor, constitutional scholar, and author Beau Breslin says the Alito Court’s reversion to states’ rights on abortion policy violates the original purpose of a constitution:

What tends to happen is that courts, the Supreme Court in particular, forget the function of a constitution. A constitution does many things, but its main goal is the limitation of the power of majorities. Anytime there’s a rights-oriented decision that pits the majority against the minority, it’s the responsibility of the court to seriously consider the protection of minority interests. Our four major institutions of the federal government all represent different constituencies. The House of Representatives represents local constituencies, the Senate represents states, and the president represents the nation as a whole. What’s left are the unaccountable, undemocratic, life-tenured, fixed-salary, federal court judges, and their responsibility is to be the voice of those who don’t otherwise have a voice in the political process. There’s a rationalization for cases like Griswold v. Connecticut and Roe v. Wade because you’re protecting the interest of minorities. But today the court is throwing things to the states. That’s just throwing it back to the majority. That doesn’t make sense from a Supreme Court perspective [Dr. Beau Skidmore, interview with Clay S. Jenkinson, “What If Every Generation of Americans Wrote Its Own Constitution?Governing, 2022.09.04].

Basic rights should not vary or disappear when an American crosses state lines. South Dakota should not be able to say that women, Indians, or visitors from Minnesota lose their bodily autonomy or freedom of speech when they travel from Minneapolis to Sioux Falls. A Supreme Court that prides itself on “originalism” needs to get back to the original purpose of the Constitution and provide uniform protection of rights for all Americans against the tyrannies that have sprouted in certain regressive states.


  1. Eve Fisher 2022-09-07 09:24

    We really need two things with SCOTUS:
    (1) A job description, including mandatory qualifications for the job. No more justices who have never worked in a courtroom as an attorney or a judge for a minimum.
    (2) Term and/or age limits on justices. Perhaps 12 years service and/or mandatory retirement at 72?

  2. O 2022-09-07 10:23

    Eve, a reasonable Senate confirmation process would take care of the first concern. Unfortunately, politics undermines fairness of process.

  3. bearcreekbat 2022-09-07 11:41

    The article linked doen’t indicate from what source Breslin came up with the idea that the “main goal” of a Constitution “is the limitation of the power of majorities.” That seems inconsistent with much of the US recorded history, at least for the original US Constitution. The only theoretical protections for any potential minorities in the original US Constitution were set forth in the Bill of Rights, which is typically described as a compromise to encourage skepical states to ratify the Constitution by appeasing the so-called “anti-federalists.” See e.g..

    Furthermore, none of the original Bill of Rights were held to limit any individual State power to repress minorities until many years after the Constitution was ratified, mostly after the civil war along with the adoption of the 14th Amendment. While it seems arguable that the Constitution evolved through Amendments and SCOTUS decisions to protect the rights of minorities from the oppression of majorities, the original purpose of the US Constitution seems more like an attempt (by formal agreement) to unite a group of States with diverse interests into a political compact that would join together to maintain independence from the existing more powerful countries of the world.

  4. P. Aitch 2022-09-07 13:11

    Blue state residents laugh at “state’s rights”. Few examples of “cutting off your nose because your face is so ugly” have been so weakly propped up as state’s rights. MAGA’s have just given Dem states the excuse to be selfish and greedy. Just watch what happens, Trumpers. #grins

  5. Arlo Blundt 2022-09-07 14:52

    bearcreekbat’s conclusion is correct, if one spends time reading about the framing of the Constitution, the ten year period of the early United States under the Articles of Confederation, and the economic collapse facing the new republic at the time of the writing. We were poor, vulnerable, and divided along sectional lines. Washington had had it with the Articles as Mt. Vernon, despite being reorganized after the Revolution from a tobacco plantation to a diversified grain farm that produced value added products, was on the brink of bankruptcy. He went to the Constitutional Convention dressed in his General’s uniform. There would be no doubt who was in charge. Jefferson was in France, Hamilton a New York banker, and Franklin in his dotage. After month’s of debate and compromise, Washington selected his bright, much younger neighbor , James Madison, to pull it all together.

  6. V 2022-09-07 15:25

    If the Supreme Court gets back to originalism, they need to give up their judicial review of the constitution. Their original purpose was to try federal cases and appeals but not the power to determine if a congressional law is constitutional.
    Overturn Marbury vs Madison

  7. bearcreekbat 2022-09-07 16:15

    V is correct. Justice Marshall’s unilateral adoption for the SCOTUS of the power of “judicial review” in Marburyhas no more basis in the language of Article III or elsewhere in the Constitution than did the “right of privacy” or “abortion.” My take is that the so-called “originalists” like Alito on the SCOTUS are not “originalists at all, rather, they simply claim to use that theory to arbitrarily inflict whatever national policy they desire.

    Here is an interesting debate (right up Cory’s alley!) describing the history of Marbury that presents arguments on both sides of the question of whether Marbury has any basis in the Constitution. The following question proposed by one side seemed to be without a valid answer:

    I ask Professor Loewy and our readers to cite one sentence in the Constitution where the Supreme Court was specifically delegated the right to declare the acts of the legislative or executive branch unconstitutional and thus void. It doesn’t exist. Marbury v. Madison emerged as pure fantasy in the early days of our Republic . . . .

  8. mike from iowa 2022-09-07 16:24

    Slightly OT, Is this a severe conflict of interest?

    Amy Coney-Barrett to rule on LGBTQ case whose anti-LGBTQ attorneys paid her 5 times for speaking engagements

  9. P. Aitch 2022-09-07 17:55

    Chief Justice John Marshall maintained that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

  10. John 2022-09-07 19:58

    It remains to be seen whether the present illegitimate Supreme Court (SCOTUS) will end this republic. I’ve written earlier that too many present justices and rulings resemble too closely the co-opting of right wing politicians that was a feature of the “law” under the Third Reich (stripping minority rights).
    SCOTUS foolishly took a case from North Carolina that advances the “independent state legislature doctrine”.

    “Under that doctrine, language in the U.S. Constitution called the Election Clause gives state legislatures, not state courts or other entities, authority over election rules including the drawing of electoral districts.”

    The nation’s 50 state chief justices signed on a brief saying, NO WAY.

    “The Conference of Chief Justices in its brief said that argument flew in the face of history and that the Constitution does not bar states from allowing their courts to review state election under their state constitutions.

    “The Elections Clause does not derogate from state courts’ authority to decide what state election law is, including whether it comports with state and U.S. Constitutions,” the conference’s lawyers wrote.”

    Republicans struggle to win elections with their anti-everything agenda, their return to the 1950s agenda, so the republicans resort to electoral games. Expect that at least 3 corrupt SCOTUS justices will be sympathetic, only 3 if we are fortunate.

  11. bearcreekbat 2022-09-08 00:54

    P is 100% correct that SCOTUS Justices are duty bound by their “sworn oath of office to uphold the Constitution.” The problem, however, arises when there are more than one possible reasonable interpretations of what exactly the Constitution requires. When there are more than one possible interpretations, which one does this sworn oath require the Judge to uphold? The ruling in Marbury is that the SCOTUS gets to decide that question under the principle of judicial review. While this may or may not be a good thing for the public there is simply no language in the Constitution expressly giving the SCOTUS that power.

    There is, however, a reasonable argument that such authority may be implied from the phrase “judicial power.” But even the author of that argument acknowledges a lack of explicit authority in the Constitution itself:

    Most people today assume that judges are authorized by the Constitution to declare statutes unconstitutional. Yet the Constitution does not seem to grant this power expressly. Article III says: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” In sharp contrast with the presidential veto power,5 nowhere in the Constitution does it say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress,
    shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.

    The author’s argument for this judicial authority is based not on the language of the Constitution but on:

    what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation . . . .

    The modern term describing statements by individuals during the process of enacting a law is “legislative history.” Originalists ridicule the use of “legislative history to understand the meaning of a law:

    Justice Antonin Scalia justified textualism in the context of statutory interpretation by declaring it superior to the selective use of legislative history to divine meaning. He compared judges perusing the legislative record to partygoers who walk past dozens of people they don’t know in order to converse with their friends. (Elizabeth Liess, “Censoring Legislative History,” 72 NEBRASKA L. REV. 568, 574 (1993)).

    Bottom line, love it or hate it, the principle of judicial review of the constitutionality of legislation decribed by Chief Justice John Marshall in 1803 in Marbury v. Madison, is simply not found in any part of the text of the US Constitution.

  12. V 2022-09-08 10:23

    Nice job bearcreekbat! You sound just like my prof in a constitutional law class back in the 80’s.

    Marbury vs Madison was the most influential political power grab in our history.

    Thanks to Madison, Donald Trump may yet have his day in court to decide the scope of executive privilege. We could easily lose our democracy thanks to the crooked republicans who stacked the court.

  13. John 2022-09-08 14:05

    In addition to judicial review being a SCOTUS made up theory not mentioned in the Constitution . . . Orginialsim, original intent, is also a made up theory that does not appear in the Constitution nor the Federalist Papers. Thus, the entire conservative premise of “original intent” has no basis – it’s not “original” and there is no universal intent. It’s conservatives creating law by MSU, making stuff up, in polite language.
    Same for the SCOTUS – created doctrine of “qualified immunity”.
    SCOTUS creates tiers for laws – one for the “special people” and another for the rest of us.

  14. bearcreekbat 2022-09-08 16:34

    Thanks V.

    Just to be clear, the power of judicial review from Marbury has been used by the SCOTUS for many, many positive decisions. Had the Court not exercised that power we would not have decisions that limit the power of Congress, the president, or a State to inflict numerous harms on less favored members of society, such as limiting capital punishment on children and the mentally incompent, limiting racial discrimination, protection from abusive police techniques (e.g. the Miranda warnings – right to remain silent, the right to a lawyer, prohibitions against use of unreasonable force, etc), and way too many other positive and beneficial protections and limits on arbitrary and cruel government power to mention.

    Of course, this SCOTUS power has also been used for numerous bad decisions, such as the Dred Scott ruling, Citizens United, etc., etc.

    The problem I see with conservatives is that they so often simply lie about being so-called originalists to justify making these decisons that arguably do much more harm than good to individuals and the population as a whole..

  15. Arlo Blundt 2022-09-08 20:07

    Well…hold on..John Marshall was one of the most intellectual men among the founders. When faced with Marbury vs. Madison the question to him was “if not the Supreme Court, who?” Marshall was a federalist, the Jefferson Presidency was the first non federalist, Democratic -Republican administration Jefferson threatened the fragile status quo through his much looser interpretation of how the Constitution was enforced. . Marshall really put some teeth in the Constitution through Judicial Review. There had to be one final interpretation.

    Jefferson ignored the courts and the Congress by unilaterally buying the Louisiana Purchase, doubling the size of the Republic. He consulted no one. It was “good trouble”. He was criticized but nobody took him to court. It was very unclear if the Constitution gave that power to the Executive with no approval by the Congress. Marbury vs. Madison and the Louisiana Purchase happened in the same year.

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