Paul Kendall: Our elected representatives need to offset court’s improper decisions

This commentary is by Paul L. Kendall, a retired executive who lives in Braintree.

Why do corporations have more unenumerated rights than private citizens? 

Two weeks ago in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade on the grounds that “the Constitution makes no express reference to a right to obtain an abortion.” 

In Citizens United v. Federal Election Commission, however, three of the same justices (Roberts, Thomas and Alito) held that “the government may not suppress political speech based on the speaker’s corporate identity.”

Corporations may spend unlimited sums to influence legislators and legislation favoring their own interests, but women cannot make decisions favoring theirs.

How can these three judges justify such inconsistency when the Constitution makes no “express reference” to this right of corporations either? In fact, corporations are not even mentioned in the Constitution.

Two other recent court decisions seem to show a similar willingness to be inconsistent by quoting phrases out of context or distorting constitutional language.

In New York State Rifle & Pistol Association v. Bruen, the court held that requiring applicants seeking unrestricted concealed-carry licenses to demonstrate a special need for self-defense violates the Second Amendment right “to keep and bear arms in public for self-defense.” The Second Amendment, however, grants no such right to bear arms for “self-defense.” To the contrary, the first half of this amendment gives the Founders’ only reason for prohibiting the infringement on the right to bear arms as being to provide for a state’s security through “a well regulated Militia.”

In other words, the Founders’ concern was, first, to ensure that each state could protect itself against invasion and domestic turmoil and, second, to manage its own security through a “well regulated Militia.” The amendment has nothing to do with wanting to carry a gun on one’s hip. 

Beyond being able to serve as part of a state or local security force, gun ownership is not an enumerated right. Hence, regulating personal gun ownership, including for self-defense, is a right reserved to the states under the Tenth Amendment and is not given to the Supreme Court to decide.

Another recent example is the West Virginia v. Environmental Protection Agency decision, where the court found that the EPA’s Clean Power Plan lacks the authority of Congress to regulate greenhouse gas emissions under the Clean Air Act. 

In this case, Justice Roberts (again supported by Justices Alito and Thomas) looks at Article I, Section 1 of the Constitution but ignores Article I, Section 8 (paragraph 18). The first section says that all legislative powers shall be vested in Congress. The second, recognizing that Congress does not have the executive branch’s ability to administer what it legislates, says that Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Since Congress empowered the EPA to address pollution under the Clean Air Act, the fundamental issue is really over who gets to decide what kind of and how much regulation is too much. Not recognizing that the Constitution gives this power only to Congress, the court takes that power for itself.

Political conservatives used to oppose such behavior as exceeding the court’s authority, calling it “judicial activism.”

With these recent examples of inconsistency, proof-testing, distortion and judicial overreach bordering upon capriciousness, a new question needs to be asked: If the behavior of Justices Roberts, Alito and Thomas no longer meets the constitutional requirement of “good behavior” to remain in office (Article III, Section. 1), what should be done about it?

Some people suggest that those three justices, plus Kavanaugh, Gorsuch and Coney Barrett, be impeached, or that term limits be established, or that the Supreme Court be expanded to include four more justices. I believe that with a relatively equally divided Senate, these options would prove to be politically futile. 

Far more effective would be to insist that our elected representatives focus on actions that can be taken now to offset the court’s improper decisions. Such as:

  • The abortion decision could be countered by removing the so-called “Hyde amendment” that prevents federal Medicaid dollars from being used for funding abortions. If such funding became a requirement for a state to receive Medicaid money, its local politicians would be faced with a big political decision. No access to abortions, no Medicaid.
  • Regarding the right to carry firearms, states could cite the “reserved powers clause” of the Tenth Amendment and limit ownership and usage based upon public safety considerations. 
  • And concerning the ability to regulate business practices, Congress could pass a joint resolution removing any doubt about its intention to give such authority to administrative agencies, just as it did with the War Powers Act authorizing the president to commit armed forces to hostile actions, i.e., to go to war, subject only to a later review by Congress. 

The Supreme Court is not the final “Decider” of what can happen in our country. “We the People” are. We just need to vote in every primary and general election.

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