By Susan Shelley
With its recent rulings on gun rights, abortion rights and climate change, the Supreme Court is sending a clear message to all government officials that the Constitution means what it says.
This has unnerved a lot of people who have grown accustomed to the idea of a “living Constitution” that evolves through landmark Supreme Court decisions in carefully chosen “test cases.” Some of that imaginative legal work is now history.
No longer will federal courts weigh how much a state gun regulation “burdens a protected interest” compared to how much it is “related to the achievement of an important governmental interest.” No longer will federal judges ponder whether an abortion law presents a “due” or “undue” burden. No longer will a federal agency be able to grant itself unlimited power to determine the country’s energy future.
The theme of the decisions seems to be: We’re sending policy decisions back to the constitutionally designated government bodies that answer to the voters, while protecting explicit constitutional rights from government infringement.
In the gun-rights case, New York State Rifle & Pistol Association v. Bruen, the majority opinion by Justice Clarence Thomas made clear that states may not treat Second Amendment rights as discretionary privileges. The case was a challenge to New York’s law banning licensed gun owners from carrying a firearm outside their home unless they could prove that “proper cause exists” for doing so. New York’s law said a “generalized interest in self-defense” wasn’t enough.
But it is enough, the Supreme Court said, citing the “normal and ordinary meaning” of the Second Amendment’s language. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote.
The court put the burden on the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Quoting its 2008 decision in District of Columbia v. Heller, the court wrote, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”
That goes far to explain the high court’s objection to Roe v. Wade and Planned Parenthood v. Casey, the two abortion-rights decisions overruled in Dobbs v. Jackson Women’s Health Organization. The people of the United States didn’t adopt a right to abortion; instead, it was interpreted into existence by the Supreme Court in 1973. Roe invented a standard based on trimesters, and two decades later, Casey threw out that standard in favor of barring laws that created an “undue burden.”
“Abortion presents a profound moral question,” Justice Samuel Alito wrote for the court, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Now it’s up to each state to decide what its law should be, and state lawmakers will have to explain their work to the voters, not to federal judges.
The principle of government accountability to the voters plays a role in West Virginia v. Environmental Protection Agency, a decision handed down on Thursday. At issue was whether the EPA acted beyond its authority with its “Clean Power Plan” rule in 2015. The agency had stretched Section 111 of the Clean Air Act, which provides narrow authority to require a facility to adopt a cleaner technology, in order to require a massive nationwide changeover from coal to natural gas, and then from natural gas to solar and wind energy, to generate electrical power.
It was a grid too far for the Supreme Court, which noted the regulation’s extraordinary reach.
“The EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors,” Chief Justice John Roberts wrote for the court. The opinion cited “an identifiable body of law that has developed” to address the “particular and recurring problem” of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
Just like federal courts, federal agencies don’t have unlimited power under the Constitution. Nobody does, and that’s intentional. The Constitution protects freedom by limiting what the government can do and then carefully describing which part of the government is allowed to do it.
The Constitution can be amended using the procedures spelled out in Article V. A two-thirds vote of the House and Senate or two-thirds of the state legislatures may propose an amendment, and upon ratification by three-quarters of the states, it’s as much a part of the Constitution as anything personally autographed by James Madison.
As an example, if three-quarters of the states ratified an amendment stating that there is a right to have an abortion in the first 15 weeks of pregnancy, no state would be allowed to deny it and no Congress or court could overturn it.
If three-quarters of the states ratified an amendment requiring proof of identification to vote in an election, voter ID would be the law of the land, even in California.
If three-quarters of the states ratified an amendment to secure a right to privacy that bars the government from conducting warrantless surveillance, collecting bulk data or secretly demanding that tech companies turn over their customers’ communications, we’d have some protection against abuses of power by U.S. intelligence and law enforcement agencies.
Suppose all of that was proposed and Americans spent years debating and securing the support of three-quarters of the states for those specific constitutional guarantees. How angry would everybody be if federal courts or agencies later disregarded all that thoughtful work and imposed their own preferences?
That seems to be the point of view of the current Supreme Court. In a free country, the Constitution and the laws can be changed, but not overridden. Freedom is a condition that exists under a government of limited power.
Happy Independence Day, and many happy returns.
Write to Susan at [email protected] and follow her on Twitter @Susan_Shelley.
This column was originally published by the Southern California News Group.