Civil and Human Rights

Resolved: Follow Constitution

This time of year, most of us are reflecting on the year that has drawn to a close and making resolutions for the new one. Over at One First Street, perhaps the Supreme Court’s justices are doing the same. But while the rest of us are vowing to get to the gym more often or eat more kale, the justices should focus on one simple resolution for 2014: Follow the Constitution.


The very first case the court will hear in the new year is NLRB v. Noel Canning, in which the justices will face an unprecedented argument that would narrow the president’s constitutional authority to make “recess appointments” to fill executive and judicial branch positions when the Senate is unavailable to give its advice and consent to nominations. The case has become a conservative cause célèbre; Senate Minority Leader Mitch McConnell has even been granted argument time to present the position of Senate Republicans to the court. The argument pressed in Canning, seeking to invalidate two of President Barack Obama’s nominations to the National Labor Relations Board, would go against constitutional practice that dates back to our nation’s first president, George Washington, and accepted understanding of the Constitution’s text.


In 2014, the Supreme Court will also decide challenges brought, as part of the ongoing conservative effort to gut Obamacare, by secular, for-profit corporations and their owners to the Affordable Care Act’s requirement that employer-sponsored health plans include no-cost, FDA-approved contraceptives. Not once, in the more than 200 years that the First Amendment guarantee of religious free exercise, has this right been understood to countenance such claims. The court shouldn’t start now.


There are also important rulings to come on questions of campaign finance, the scope of the treaty power, and environmental law and federalism. In all of these cases, the justices should resolve to follow the text and history of the Constitution.


Looking back, the justices had a mixed record on this score in 2013.


Consider voting rights.


In Arizona v. Inter Tribal Council,Justice Antonin Scalia wrote an opinion for the majority of the court striking down Arizona’s requirement that an eligible voter provide additional, documentary proof of citizenship in order to register to vote in federal elections, because the state requirement conflicted with a federal law aimed at encouraging Americans to exercise the right to vote. In an originalist showdown with Clarence Thomas, Scalia pointed to the text of the Constitution — specifically, the Elections Clause — to demonstrate that Congress has broad power to protect the right to vote in federal elections. At a time when states are engaging in voter suppression efforts, Scalia’s reaffirmation of sweeping congressional power under the Elections Clause is a big deal.


Unfortunately, the majority in Shelby County v. Holder seemed to forget about the text and history of the Constitution as quickly as most Americans forget about their gym membership come Feb. 1. In an opinion by Chief Justice John Roberts, the court majority struck down a core provision of the Voting Rights Act as unconstitutional without ever explaining what specific portion of the Constitution it purportedly offended. Dissenting from the majority opinion, Justice Ruth Bader Ginsburg had no problem pointing out the provisions of the Constitution that support the protections of the Voting Rights Act: The 15th Amendment expressly gives Congress authority to prevent racial discrimination in voting, which is exactly what the Voting Rights Act is all about.


The justices did a better job honoring the Constitution’s guarantee of equality in their ruling striking down the Defense of Marriage Act. Justice Anthony Kennedy explained for the majority that DOMA’s “principal purpose is to impose inequality” by placing “same-sex couples in an unstable position of being in a second-tier marriage.” This rank discrimination is unconstitutional, he explained, because it “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” This ringing endorsement of the Constitution’s ideal of equal rights for all was a stellar way to end the 2012-13 Supreme Court term, even if Scalia, in dissent, accused the majority of weighing in on an issue better left to the political process. The fact is that the Constitution expressly enshrines certain rights above the whims of a democratic majority. Equality before the law is one of those rights.


While 2013 was a mixed bag in terms of constitutional fidelity at the high court, implicit in any New Year’s resolution is the idea that one can always do better. And the court will have plenty of opportunities to follow the text and history of the Constitution in 2014.


Let’s just hope that by June, when the court will likely announce decisions in the term’s most high-profile cases, the justices’ resolution to follow our founding charter doesn’t go the way of many Americans’ promises to finally lose those last five pounds. The implications of allowing our Constitution to gather dust in the corner are far more serious than allowing that new treadmill to turn into a coat rack.


This piece appeared in at least the following additional outlets:

*  The Lima (OH) News (online)

*  The Delaware (OH) Gazette (online)

*  The Lancaster (OH) Eagle-Gazette (online)

*  The Battle Creek (MI) Enquirer (online)

*  The Lansing (MI) State Journal (online)

*  The Santa Fe (NM) New Mexican (online)

*  The Bellevue (OH) Gazette (online)

*  The Nashville (TN) Tennessean (online)

*  The Port Huron (MI) Times Herald (online)

*  The Iowa City (IA) Press Citizen (online)

*  The Detroit (MI) Free Press (online)

*  The Fremont (OH) News-Messenger (online)

*  The Galion (OH) Inquirer (online)

*  The Asheville (NC) Citizen-Times (online)

*  The Altoona (PA) Herald-Index (online)

*  The Des Moines (IA) Register (online)

More from Civil and Human Rights