The Compass, August 2022
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In the hot Philadelphia summer of 1787, a unique collection of men debated how to create a new form of government, a government that would put first the rights and privileges of its citizens. At the end of the summer, most of them signed the most significant government document in the history of the world. Within a year, eleven states ratified the United States Constitution, and the other two states would follow in the next two years. Thus, a new nation arose not from tyrants and despots, but from citizens through their representatives.
Upon ratification, the Constitution became the law of the land. According to Article 1, the legislative branch was to pass laws within the limited powers granted to them. In Article 2, the founders created an executive branch to administer and enforce the laws legally passed by Congress. Article 3 provided for a judicial branch that would adjudicate laws brought before them to determine if the law was in harmony with the provisions of the Constitution. The other articles were largely procedural, but subsequent amendments enumerated specific rights for the citizens of the nation.
One of the popular criticisms of the judicial branch of government, from all segments of the political spectrum, is judicial activism. What is judicial activism? A good definition is when a court decision is rendered based on personal or political ideologies, rather than providing a constitutional basis for it.
Almost all judges and courts are, at some point, accused of activism. In particular, the Supreme Court of the United States (SCOTUS) has recently been targeted with this complaint. The most recent term was one of the most momentous in our lifetimes, with several high-profile rulings that have garnered a lot of scrutiny.
To frame the debate over the latest decisions, the ninth and tenth amendments provide context for why the SCOTUS acted as it did. The first eight amendments to the Constitution enumerate specific individual rights that the federal government is obligated to adjudicate and protect.
The ninth amendment clarifies that United States citizens have far more rights than those currently listed and that their absence in the Constitution doesn’t diminish their importance. It says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The tenth amendment then makes clear that rights not enumerated in the Constitution are outside federal jurisdiction; they are to be relegated to the states. It says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Bill of Rights supports the body of the Constitution by reinforcing the concepts of limited government, checks and balances, separation of powers, and popular sovereignty. Rights not specifically enumerated were always intended to be pushed down the governmental food chain to state or local governments. In this way, our liberty is safeguarded from governmental overreach.
In summary, the Constitution not only empowers the branches of the federal government but also simultaneously imposes limitations. As the law of the land, it clearly legislates that most rights belong to the people and those rights are best protected at the lowest possible level of government rather than from the top.
As we review the most recent SCOTUS rulings, remember:
- Citizens have enumerated rights specifically mentioned in the Constitution and especially in the first eight amendments;
- Citizens also have many other rights not enumerated in the same document but no less important; and
- Those other rights are outside the purview of the federal government and are relegated to the individual states for adjudication.
Two rulings stand out from the rest. Some argue that these decisions demonstrate hypocrisy and judicial activism by the highest court in the land. They claim that, in one case, the federal government interfered with state autonomy, and in the other case, the court essentially recused themselves and gave full authority to the states to decide.
New York State Rifle & Pistol Association v Bruen. The court ruled that states with strict limits on carrying guns in public violate the Second Amendment. This falls into the purview of the federal government since the right to bear arms is one of the enumerated rights in the Constitution. Individual states do not have the authority to limit that right.
Dobbs v Jackson Women’s Health Organization. The court ruled that a state law banning most abortions is constitutional. Abortion is not an enumerated right in the Constitution, so the jurisdiction reverts to the states. As part of this decision, the court ruled that Roe v Wade had been wrongly decided; that the federal government had overreached in its prior ruling. It is well to note that the federal government would have overreached again if it had outlawed abortion. But it did not do so. The decision merely returned the issue of abortion back to the individual states to decide.
Both decisions were divided by a 6-3 vote along ideological lines. On the surface, this makes it look like the decisions were a result of a personal or political agenda. Fortunately for us, we can turn to the Constitution itself for answers. The clear distinction in these two cases is that of enumerated rights and what the ninth and tenth amendments say about that. The second amendment guarantees the right to bear arms (enumerated right), so it is a federal issue. Abortion is not an enumerated right, so it is a state issue. According to the law of the land (the Constitution), both cases were rightly decided.
We see this same principle at play with several decisions involving first amendment rights. The first amendment enumerates several rights, including free exercise of religion, freedom of speech, and the right to assemble peaceably.
Ramirez v Collier. The court ruled that a state cannot execute a death row inmate without allowing his pastor to touch him and pray aloud in the execution chamber. (Note: this was decided 8-1 with only Justice Thomas dissenting.)
Houston Community College System v Wilson. The court ruled that elected bodies can censure their members without violating the first amendment. Freedom of speech is an enumerated right and is under the purview of the Federal government to decide any limitations on that right. (Note: this was decided 9-0 although most public polls disagree with the decision.)
Shurtleff v Boston. The court ruled that a city violated the first amendment when it refused to allow a private group to raise a Christian flag in front of city hall, although it had allowed many other organizations to do so in support of various causes. (Note: this was decided 9-0 although most public polls disagree with the decision.)
Carson v Makin. The court ruled that a program that excludes religious schools from a state tuition program violates the free exercise of religion.
Kennedy v Bremerton School District. The court ruled that a football coach at a public school has the right to pray on the football field after his team’s games.
The framers of the Constitution never intended for a small group of elite rulers to manage the lives of citizens. Their vision was to create a political and social environment that allowed people to exercise agency in their own affairs while protecting the rights of others. They opted for limited government and popular sovereignty over top-down despotism.
These recent rulings demonstrate a marked move for the Supreme Court to get out of the legislation business and back into the judiciary business. They stayed in their lane by deciding cases over which they have jurisdiction due to enumerated rights and returning to the states the powers which are rightfully theirs under the Constitution. They chose citizen rights over the rights of states, cities, schools, and even over the federal government itself. There is still a long way to go before we completely reclaim our individual liberty, but this SCOTUS term provided a step in that direction.