HABEAS PRAEIUDICIUM
The Supreme Court Stops!
But not in the name of love
Let’s ignore enabling religious bigots, declaring the rights of a fetus to be superior to that of a woman, and telling college grads with crushing debt to pound salt.
Hah! Impossible. But let’s not think about those things for a moment.
The Supreme Court actually got one right.
Back in June of 2023, in a 6 to 3 decision, the court decided that the Independent Legislature Theory was without merit. The theory argues that since the Constitution specifies State Legislatures as having jurisdiction in conducting federal elections, the legislature can send whatever electors it likes to the electoral college, regardless of the outcome of the popular vote.
It is unlikely the Founding Fathers anticipated illogical assaults on the Constitution.
This is an incredibly dangerous theory. It makes the will of the people subservient to that of their state legislature, often full of representatives elected on the basis of gerrymandered districts and voter suppression. This is a grab for power without regard to principle.
However the theory failed under the scrutiny of the court. This is good news since it is quite possible that the opposite decision may have been the death knell for the American Republic.
Nonetheless, that 3 justices dissented is disturbing. It is not terribly surprising that Justices Thomas, Alito, and Gorsuch did not agree considering their record of staunchly reactionary opinions. But this dissent goes a step beyond. These justices are Originalists, who believe that the Constitution must be interpreted based on the original text and understanding of those who wrote and ratified the words.
In other words, the Constitution is a document frozen in time except via amendment. Since amendments are nearly impossible with the current political climate, their view is that the Constitution is immutable (not unlike the opinion of many regarding the Christian Bible.)
It is quite likely that reanimated founding fathers would find originalism to be balderdash. They were quite aware that the Constitution needed to be a living document and provided for amendments to make it so. But it is unlikely they foresaw the current gridlock and effective neutralization of the amendment process.
As the agents of change from a Monarchy to a Republic, they certainly would not think their creation should be immutable and yet another manifestation of Divine Rights.
If not so sad, it would be laughable that Supreme Court Justices could think that the Constitution must be interpreted exactly as originally understood. This assumes that infallible god-like men created the document and that we should not use any wisdom gained over the past 236 years.
Thankfully, the 6 justices finding against the theory do not agree and we need not react to a ludicrous decision. But the three who dissent give hope to those who favor the power of state legislatures over the popular vote.
It will be no surprise when we see additional cases hoping to make the Independent Legislature Theory the law of the land. Those perpetrating this balderdash are on a crusade to bend all to their will, no matter the cost.
