American Lawlessness – Rebuttal

Photo by Mark Fischer
Used with permission

By, James S. Eggert, Esq. | 3 July 2022

Thanks for your thoughtful and carefully reasoned essay.

I disagree with your reasoning.

To address your ultimate point—the rising lawlessness of our nation—I believe that has already been in the works for many years precisely because of the lack of respect for the Law that “living Constitution” theorizing has engendered.

A “living Constitution” will always fall into abuse at the hands of judges, whose power, unbounded by any fixed principle, will inevitably be exercised in favor of their private preferences, which may or may not align with the “Will of the People.” Ironically, you seem to recognize the workability of originalism when you note that Alito is “right” in his reasoning, based on his informed judgment that abortion, at the time of Roe, was not deeply rooted in the nation’s history and traditions, a point that must be readily conceded by any reasonable person.

Yet it was the Court in 1973 that steered the nation off the rails of Constitutionalism (a term that I would prefer to “originalism”) by declaring such rights, ex nihilo, out of the majority’s own preferred outcome. Not that the rails hadn’t already been bent. Certainly, we can trace this type of derailing amongst various areas of Supreme Court jurisprudence back to the New Deal era and probably further if we took the effort (the Dred Scott case, for example). The temptation (and opportunity) to abandon Constitutionalism will always be with us.

The Framers of our republic left us a good legacy. At the Federal level, we have the Congress, imbued with Article 1 enumerated powers (only enumerated powers, not others). For the many reasons articulated in your piece, the Legislative power fails the People. Not only that, the legislative power of the several states is the true repository of political power, including the power of the people of the states to amend and design their own state Constitutions, fashioning their own standards for state constitutional rights, a liberty that numerous states have vigorously exercised and constitute to do so in our own day.

At the Federal level, they left us the legacy of a process for amending our Federal Constitution, a practice seemingly almost entirely forgotten (even spurned) in our own generation as well as in the rising ones. Who could imagine, for example, the majority of the Supreme Court of 1990 thinking that the Nineteenth Amendment was necessary, since “clearly” a woman’s right to vote was already instantiated in Substantive Due Process and incorporated to the states by the Fourteenth Amendment? The “New America” has seemingly come to expect the Supreme Court, nine unelected persons, to handle the nation’s Constitutional amendments for them.

From whence does this “New America” derive? I suggest it is born of Constitutional “worship.” You say it is the worship offered by the originalists who “insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.” But whereas “living constitutionalists” accuse originalists of overly reverencing the Constitution, reading its text strictly according to historical examples and original intent, it is in fact the “living constitutionalists” that are most to blame for the “New America.” It is they who worship the text of the Constitution, supposing that embedded therein lie eternal principles of justice and universal rights that can be divined from the dusty and ancient text only by Supreme Court Justices, the priests of the Constitution, alone worthy to read the entrails and proclaim to us out of their mystic wisdom those judicial oracles that must guide our own times.

The originalists see the Constitution for what it is: clunky and old, and filled with limitations, and maintaining that those limitations should be openly observed when reached so that the people can change their laws to reflect new or emerging values. Indeed, originalists see the Constitution as living because it is amendable. It must be, for such a document could never endure if forever fixed in the mode of 1789. That is not to say that there isn’t still a lot of 1789 left in us, but it must move and change in some respects to reflect the values of the people whom it governs. For if a people’s governing document no longer reflects their values, then they will understandably spurn it, and, as you fear, will reject Law. And lawlessness is a pernicious evil.

The Constitution is a document designed for a free people, a thinking and rational people, a people willing to be meaningfully engaged in their own political destiny, and to do so together against their competing interests and values, and with compromise and expediency. Behind our Constitution were revolutionists who dared to break away from what they considered tyrannical rule and jump together into the unknown. Perhaps it could be said that we will never be worthy of (or successful inside) the framework they have left for us unless we are willing to be like them, willing and able to be engaged as a people ever ready to frame their own government anew as the need arises, and educated enough in the art and science of politics to govern ourselves, or recognize those to whom such important work should be entrusted, and the manner of its entrustment. I suspect that our ineptness in this regard is our emerging problem, and I have no ready solution for it. Perhaps the “New America” is ungovernable except by tyranny. I hope not.

Your article seems to put the onus on the Court to change its philosophy, as if adopting the reasoning and methodology of Sotomayor, Kagan, and Katanji-Brown is the thing needed to hold our democracy together. I would encourage you to abandon this cynical and empty approach, as if the political solution for the country turns on the Supreme Court acting as the replacement for our ineffectual legislative branch, or that a descending lawlessness is to be placed at the Court’s feet because they refuse to act as the kind of legislature you would like and adhere to a judicial philosophy that maintains judges are only interpreters of the People’s Will expressed in written texts, not political priests.

On the subject of a court acting as a legislature, I will let Justice Scalia speak (from his dissent in Casey):

In truth, I am as distressed as the Court is—and expressed my distress several years ago, see Webster, 492 U.S., at 535—about the political pressure directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 7, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution and are enforceable by this Court—not just those mentioned in the text or established in the traditions of our society. Ante, at 5-6. Why even the Ninth Amendment—which says only that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, un-hinted-at rights, definable and enforceable by us, through “reasoned judgment.” Ante, at 6-7.

What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy, and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it. Ante, at 22-23.

* * *

There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “call the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon to be played out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself “calling the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

You say, “Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.”

But I think it is the “living constitutionalists” that are to blame for the growing lawlessness arising out of a sense that the Constitution should not be amended, but ever interpreted.

Welcome to the (New) Era of American Lawlessness

Caricatures by DonkeyHotey
Used with permission

By, Chris Ricchetti | 30 June 2022

Rebuttal by, James S. Eggert, Esq.

On the occasion of the end of the October 2021 Term of the Supreme Court of the United States

…to secure these [inalienable] Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, …

Thomas Jefferson (1776)

Ordered liberty sets limits and defines the boundary between competing interests.

Associate Justice Samuel A. Alito, Jr. (2022)

Agreement Across the Abyss

As bitterly divided as this country is ideologically, there is greater than 60% agreement on at least a dozen important issues—including the right to abortion (61% – Pew, 2022), the right to gay marriage (71% – Gallup, 2022), reasonable gun restrictions (63-87%, depending on the proposed restriction – Pew, 2021), regulation of carbon emissions and public investments in clean energy (71-90%, depending on the proposal – Pew, 2020) and several others—including many aspects of police reform (63-89%, depending on the proposal – University of Maryland, 2020).

If democracy were working in the United States, we would already have Federal laws establishing and protecting abortion rights, marriage rights, gun safety, emissions standards, and the rest—because these are things that a supermajority of Americans want.

But we are falling far short of the promise of American democracy—government of, by and for the people. Objectively, a huge segment of our existing laws and regulations conflict with the will of the majority of our citizens, and precious few broadly supported proposals for new legislation are ever enacted.

How did this happen?

Origins of the Electoral College

The Framers of the Constitution were determined to immunize the Republic against the “Tyranny of the Majority,” a danger that Western political philosophers dating back to ancient Athens had long held was the chief vulnerability of democracy, and against potential abuses of Presidential power. The Southern delegates to the Convention were concerned specifically with protecting the institution of chattel slavery from Northern abolitionist “tyranny.”

One of several preventative devices that the Framers established was to grant both greater parliamentary and greater electoral representation per capita to the citizens of less populous (“smaller”) states than to the citizens of more populous (“larger”) states. Without these assurances—to allay Southern fears that the more numerous and more populated Northern states might garner Congressional and Presidential power sufficient to end slavery—the Union of the colonies would not have endured.

The Electoral College was born of the same concern—to protect minority interests generally (not only slavery) from being trampled upon by “mob rule.” Ironically, for all their grand declarations about all men being equal and liberal democracy being the best form of government ever devised, many of the Framers had serious reservations about the new Enlightenment values. It all sounded great on paper. But, at the time, liberal democracy was largely untested, and no one could be certain that We the People would act out of reason, rather than passion. Many feared that a populist tyrant might assemble a popular majority and ascend to the Presidency by swaying impressionable, under-informed voters—perhaps they were onto something!

“Every white, male landowner shall have his say at the ballot box,” they reasoned. “But, as a safeguard against passion-driven voters unknowingly electing an un-democratic, incompetent, or even tyrannical Executive, we will let a small cadre of the ‘smartest’ men from each state—the ‘Electors’—make the final decision.”

From the beginning, the Framers installed an oligarchic “escape hatch,” just in case liberal democracy turned out to be messier than anticipated[1]. Very likely they were influenced by those among the ancient Greeks who were enamored with the possibility of a non-tyrannical aristocracy comprised of wise, benevolent, virtuous leaders acting in the public good (e.g., Plato’s “Philosopher Kings” who embody the union of wisdom with political power). While most of their writings reflect a quite enlightened view of human nature, the Framers could be intermittently naïve. According to Alexander Hamilton, they hoped that the decentralized structure and short tenure of each Electoral College would minimize the likelihood of widespread corruption (see The Federalist, No. 68).

The Framers wanted to believe wholeheartedly in government by consent of the governed, but they could not quite bring themselves to go all-in. That is why they established the Electoral College. The elites of the Electoral College would save the people from their own irrationality, should that ever become necessary. The elites would have discretion to overrule the People’s Will, should the people ever make an “irrational” choice for President of the United States.

Over-Representation of Smaller States in Presidential Elections

The Electoral College as originally conceived was a temporary, independent body consisting of Electors, appointed by state legislatures[2], who had free reign to elect the President, regardless of general election results. In time, however, each state passed legislation compelling its Electors to vote in accordance with the will of the state’s voters, as reflected in the popular vote count. With Electors stripped of the power to vote independently, the Electoral College lost its raison d’être and electoral vote counting became a mere formality. The Framers’ oligarchic “escape hatch” was thereby rendered ineffectual.[3]

This disempowerment of the Electors brought the country a step closer to true representative democracy. That’s the good news.

Unfortunately, in the course of making this change, all but two of the states made a grievous error. They replaced the autonomy of the Electoral College with something almost as un-democratic: except for Nebraska and Maine, every state passed legislation allocating all of its electoral votes to the presidential candidate who wins its popular vote. As a result, presidential elections are decided based on fifty discrete state elections—each having a population-based “point value”—rather than one unified national election.

Consequently, in two presidential elections since 2000, the “winner” lost the national popular vote, yet he ascended to the Presidency on the basis of having tallied more electoral votes than his opponent.

If, instead, the states had decided to allocate their electoral votes in proportion to the number of popular votes cast for each candidate—as Nebraska and Maine do—any incongruity between the popular and the electoral vote counts would be extremely unlikely[4].

It is not the existence of the Electoral College per se that is yielding un-democratic election results in the modern era. It is the “winner-take-all” allocation of electoral votes by the states that is fatally flawed.

What, specifically, is wrong with the existing “winner-take-all” approach?

The over-representation of small-state residents in presidential elections was agreed to by the Framers and has been a feature of our electoral system from the beginning. But the disparity has gotten worse over time.

In 1790, each resident of Delaware (the smallest state) enjoyed 81% more representation in the Electoral College than each resident of Virginia (the largest state)—not quite double[5] (see orange line in Chart 1).

Today, the residents of Wyoming have 281% more influence on the electoral vote count than their friends in California. Another way of saying the same thing is that the electoral influence per capita of Wyoming is almost quadruple that of California (see blue line in Chart 1).

Chart illustrates increased disparity from 1790-2020 in Electoral College influence of small states versus large states
Chris Ricchetti Chart 1

But the problem is worse than that—much worse.

Due to the “winner-take-all” allocation of electoral votes adopted by forty-eight of the fifty states, “blue” voters living in “red” states are quite literally disenfranchised, as are “red” voters living in “blue” states. For example, not only does voting for the Republican presidential candidate in the true-blue state of Illinois have no effect on the outcome of the election, simply by virtue of living in Illinois (and being counted in the census), Republican voters actually add to the electoral influence of their Democratic opponents!

At this point in our history, most states are either solidly “red,” or solidly “blue,” which means that voters in the remaining “swing states” are the real deciders. In only twelve of the fifty states is there any reasonable chance that either presidential candidate could win. And there are probably only seven states now that are truly competitive—Florida, Pennsylvania, Ohio, North Carolina, Michigan, Wisconsin, and Iowa. Georgia may soon become competitive and, eventually, Texas will too.

Even in the swing states, where voting matters most, all of the votes cast for the candidate who ultimately loses a state’s popular vote are essentially disregarded, as 100% of each state’s electoral influence goes to the state’s popular vote winner.

This is no way to run a democratic republic. Even the Framers were not altogether satisfied with the Electoral College system they had devised. But after one hundred days of exhausting deliberations, it was the only system on which they could agree.

Over-Representation of Smaller States in The Senate

Here again, some degree of unequal representation was agreed to by the Framers—to assure smaller states of meaningful participation in the legislative process.

In 1790, Delaware’s per capita representation in the Senate was 12.7 times greater than Virginia’s (see orange line in Chart 2).

Today, Wyoming’s per capita Senatorial representation is 68.5 times greater than California’s—more than a five-fold increase in the Senatorial representation gap since 1790 (see blue line in Chart 2).

Chart illustrates increased disparity from 1790-2020 in Senatorial representation of small states versus large states
Chris Ricchetti Chart 2

In fact, the 25% of Americans who live in the smallest states are represented collectively by 61.0 senators, while the 25% of Americans who live in the largest states are represented by just 5.3 Senators[6] (see table). That leaves 33.7 Senators for the 50% of Americans who live in “medium-sized” states.

Table illustrates the disparity in Senatorial representation of small states versus large states
Chris Ricchetti Table 1

There is, of course, also a Senatorial representation gap between the “Two Americas.” Solid-Red America (33.85% of US population) controls forty-six Senate seats, while Solid-Blue America (43.19% of US population) controls only forty. Purple America (22.96% of US population) is represented by the remaining fourteen Senators.

We are a long way from the democratic ideal of “one person, one vote.”

The unequal distribution of Senatorial representation is hugely consequential.

The Senate has the power to confirm, to reject, or to delay indefinitely the seating of every judge across the entire Federal judicial system—the entire Third Branch of the Federal government—including District Courts, Circuit Courts, Appellate Courts, and the Supreme Court.

The Senate has the power to confirm, to reject, or to delay indefinitely the filling of all fifteen Cabinet positions, all ambassadors to foreign nations, all directors of regulatory and some non-regulatory Federal agencies, members of the Federal Reserve’s Board of Governors, and others—nearly twelve hundred positions appointed by the President.

When the Senate is controlled by the party opposing the President, Senators can (and do) wreak havoc on the Executive Branch, maintain vacancies in important positions for years, and greatly impede the President’s effectiveness. Even when the opposing party is in the minority, there is a lot that Senators can do to thwart the President’s efforts to govern.

The Senate has the power to remove impeached government officials from office—or to turn a blind eye to high crimes and treason—as it did twice for former President Trump. That is certainly a consequential power.

Perhaps most importantly, nostalgic devotion to the Cloture Rule (the “Filibuster”)[7] in combination with the wide disparity in Senatorial representation, makes it far too easy for Senators, acting on behalf of narrow, minority interests, to block the passage of urgently needed legislation that is supported by a supermajority of Americans. It is maddeningly difficult for even the most well-intentioned lawmakers to get an up-or-down vote on many bills that the People want enacted.

As years of orchestrated gridlock and inaction roll by, the disconnect between the Will of the People and the Laws that govern them grows more pronounced. The existence of this growing disconnect is conclusive evidence that representative democracy in the United States is floundering.

Only as one begins to appreciate the magnitude of the electoral and Senatorial representation gaps do the otherwise bewildering phenomena of American politics begin to make sense.

Add to all of this, the gerrymandering of Congressional districts, laws aimed at disenfranchising minority voters, unlimited “soft” money, American lobbyists advocating for dictators and other corrupt foreign interests, electioneering by foreign actors, corporations as people, and money as speech.

Is it any wonder that the Will of the People goes unheeded?

Where Congress Fails to Act, SCOTUS is Happy to Oblige

Congress’ abdication of its responsibility to legislate the People’s Will means that six (unelected) Supreme Court Justices will now settle all the important issues that the Congress has failed to address. As a direct consequence of Congress’ failure, six theocratic reactionaries—who see the world very differently than most Americans—are now poised to radically re-shape the contours of American life in all kinds of ways that a supermajority of Americans do not support. Now we must contend with the Tyranny of the Minority.

But don’t blame the Justices. It is solely because of Congress’ fifty-year failure to codify the right to abortion that the issue came before the Supreme Court in the first place.

If you don’t see the Constitution as a living, breathing document, then Justice Alito’s originalist legal reasoning is quite sound. He is right. There is no explicit right to abortion granted under the Constitution, nor is there any right to abortion deeply rooted in our history and tradition. To the contrary, as Justice Alito rightly points out, abortion at any stage of pregnancy was illegal in three-fourths of the States on the day that Roe was decided. Justice Alito is also quite correct in his assessment of the reasoning provided in Roe. It is weak and, in places, not even factually correct.

But what of stare decisis—and, with regard to Roe and Casey, deference to precedent-on-precedent? It is hard to disagree with Justice Alito’s assertion that bad precedents ought to be overturned—“bad” according to whom, though?

Bruen (most especially) and Dobbs illustrate the absurdity of Originalism. Originalists seem to be possessed of the quasi-religious belief that anything short of total fidelity to the language and world view of the Eighteenth Century will take us down a slippery slope of relativism and lead to the complete breakdown of the Constitution as an institution. And so, as we move further and further from the language and world view of the Eighteenth Century, originalists like Justice Alito insist that we remain forever anchored in the inerrant wisdom and foresight of the Framers.

Is not the very idea that every aspect of modern life should be evaluated from the two-hundred-and-thirty-five-year-old perspective of the Framers absurd on its face?!

Must we continue to pretend that the Framers had any meaningful frame of reference for the advances in medicine that would come? Or the immense lethality that can now be carried over one’s shoulder into schools, churches, movie theaters, night clubs, and grocery stores? Or the establishment of a national standing army (most of the Framers were adamant that this country should never have one) on the scale of the modern US Military? Or the awesome power of cable “news” and the internet to bring out the worst in us? Or the catastrophic danger of global climate change that now threatens virtually all advanced life on this planet? Or the many ways in which American demographics and values would change and evolve? Or the vast power and influence of global corporations (British East India Company notwithstanding)? Or the unconscionable economic inequality that too many years of under-regulated capitalism would bring? Or the emergence of offshore corporate and personal tax havens? Or cryptocurrencies? Or the profound impact of American politics on the entire world? Or the dependence of democracy throughout the world on the military might of the United States? Or the possibility of mutually assured nuclear annihilation?

Each of these developments calls us—carefully, thoughtfully, in good faith, and with fear and trembling—to find better ways to honor all of the Spirit and most of the Letter of the Constitution, as we seek to apply its wisdom and authority to the realities of modern life.

I am certain that Thomas Jefferson would agree. As I have written previously, Jefferson was, by the standards of today’s conservatives, a radical, extremist anti-originalist, who intended a living, breathing, evolving Constitution.

The (New) Era of American Lawlessness[8]

It is bad enough that the Congress cannot move the country forward by passing laws that reflect the Will of the People. Now we have an ensemble of Christofascists ready, willing, and determined to move American Law backwards—even further away from what most Americans want!

In a purportedly democratic society what incentive is there for citizens to comply with a system of laws that most of them do not support?

Democracy derives from and depends upon the consent of the governed—remember?

The six conservative Justices do not have the sound judgment or the common sense to see that ruling against the will of the supermajority on so many aspects of American life will inevitably result in serious erosion of the Rule of Law.

The Justices should not take it for granted that law enforcement will have the will to enforce every change in the law that results from the rulings they make. Cops and prosecutors at all levels—Federal, state, and local—are going to decide for themselves which laws they enforce and prosecute within their jurisdictions, and which laws they ignore.

Individual citizens will do the same, deciding for themselves which laws to follow and which to ignore, based upon their own values and beliefs, greatly undermining respect for Law—not just the “controversial” laws, but all laws.

Worst of all, the ideological divide in this country is now going to become institutionalized, as the various state and municipal legislatures make their own “red laws” and “blue laws” without regard for any ruling of the Supreme Court with which they disagree—resulting in a patchwork of conflicting, yet overlapping legal regimes based on radically different ideologies.

It will be a jurisdictional nightmare, replete with divided loyalties, corruption and injustice, law enforcement personnel gone rogue, and spotty accountability. In some cases, Due Process of Law will become all but impossible to ensure.

In Chicago, a state’s attorney will decide to make an example of some red-state visitors in possession of assault rifles—regardless of any applicable ruling from SCOTUS. This will bring thousands of AR-15-toting “patriots” to Chicago in protest. How’s that going to end?

At some point, in flagrant disregard for a dozen laws, a prosecutor and a judge in Texas will orchestrate the literal kidnapping of California citizens who in some way facilitate abortions for Texas citizens, convict and incarcerate them in Texas, and the Governor will refuse to let them go. Imagine the uproar.

We already know that this Court will uphold any and every state law that allows states to “rig” their elections. Eventually—probably sooner, rather than later—some obnoxiously un-democratic law in a swing state will decide a Presidential election, and all hell will break loose.

The rulings handed down this term concerning abortion, school prayer, the reach of Federal regulators, the further expansion of gun rights (just days after the enactment of some modest, widely supported gun restrictions), and the use of public funds to pay for religious education are only the beginning of the broad rollback of 100+ years of American jurisprudential evolution that the six ultra-conservative Justices are hell-bent on completing.

Together with their Congressional enablers, Justices Thomas, Alito, Gorsuch, Kavanaugh, Coney Barrett and Roberts will forever be remembered for having cracked the foundation of the Rule of Law and ushered in the (New) Era of American Lawlessness.

Five years from now, when “Laws Were Made to be Broken” will have become the mantra of the American people, you will know who to thank.

Oh, and if you prefer airplanes that have had regular maintenance, ribeye that is free of Mad Cow Disease, and water uncontaminated by mercury and E. coli—fuggetaboutit!!! To make those assurances, we’d have to infringe corporate “liberty.” And that is something we simply cannot allow in the Land of the Free.

From here on out, it’s every patriot for herself.

End Notes

  1. The Framers would have characterized the Electoral College as republican, rather than oligarchic—simply an additional layer of intermediate representation in a representative democracy. That view, it would seem, requires inordinate faith in the integrity of the state legislators who elect the Electors. Perhaps their scheme does bear a passing resemblance to the manner in which some modern European parliaments elect their heads of government, although under the US Constitution, Electors must be private citizens who do not hold any public office.

  2. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”(Constitution of the United States of America, Article II, Section 1)

  3. Today, as a way of rewarding key operatives who help candidates win state elections, the winning political party in each state appoints “Electors” to formally cast the electoral votes it has won—an entirely honorary and symbolic role.

  4. …although still mathematically possible under certain very specific, and very improbable, circumstances.

  5. In 1790, there were 19,698 people living in Delaware for each electoral vote allocated to the state, vs. 35,600 residents of Virginia for each of its electoral votes.

  6. In 1790, the quartile gap was 8.3 senators to 3.0 senators (out of 30 senators in total).

  7. The Cloture Rule has the effect of raising the number of Senators needed to pass most legislation from a simple majority (51) to 60. Without the consent of 60 senators, most matters can be filibustered and never even brought up for a vote.

  8. Some will react to the title of this essay by asking, “When was the United States ever not lawless?” Their point is well-taken. There is no doubt that, in many respects, our courts and systems of justice are exemplary. In countless cases, they yield outcomes that are fair, even-handed, and just. And, in far too many cases, the legal process yields outcomes that are extremely unjust. It’s both/and, not either/or. Therefore, with gratitude for the lawfulness and justice that does exist in our system, it is fair to ask: When ever has there not been selective prosecution? When ever have “white” people (in aggregate) and people of color (in aggregate) not had entirely different experiences with law enforcement and the criminal justice system? When ever have our civil courts not been a sanctioned forum for the expression of our most primal instincts to inflict maximum pain on our perceived “enemies”—even when we know that our revenge is far more severe than and totally out of proportion to the injury we have suffered? When ever has our legal system not been tainted by corruption? When ever has there been equal justice under law? The parentheses around the word “New” are intended as an acknowledgment of those realities. And yet, what is unfolding now is “next-level” lawlessness.

T.J. the Anti-Originalist

By Chris Ricchetti | 16 September 2021

I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society.

Thomas Jefferson

Jefferson penned this declaration in Paris in a letter to James Madison on September 6, 1789, in which he examines the question of whether one generation has the right to bind another.

He goes on to say that the society may form rules for the disposition of land at death—to spouse, to children, to legatees, to creditors, etc. But there is no natural (i.e., no moral) right to a decedent’s property—not creditors, not even family have any moral claim to it. A legal successor’s interest, if any, is derived solely from the laws of the society of which they are members. It is a “municipal” (i.e., socially constructed) interest only.

Following a lengthy application of this principle to management of the public debt, Jefferson continues…

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct.

In fact, Jefferson argues that laws should “sunset” automatically, so that inaction on the part of government would not perpetuate the status quo by default: “…a law of limited duration,” he says, “is much more manageable than one which needs a repeal.”

Thomas Jefferson never publicly advocated for an actual sunsetting constitution. Presumably, he regarded the amenability of the U.S. Constitution to be a more workable actualization of his usufruct philosophy. But mechanics of revision aside, there is little doubt that Jefferson was, by today’s standards, a radical, extremist anti-originalist, who intended a living, breathing, evolving constitution.