The Most Constitutional Right

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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10 Responses

  1. Avatar Philip H
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    says:

    So here’s another interesting test case – assuming I read you right:

    It is an affront to Constitutional governance and consent to Constitutional governance in a democratic republic for voting rights to be inherently interfered with. SCOTUS has recently said that it, and all federal courts, have no business interjecting remedies into Congressional gerrymandering cases, even though the decisions of said cases designate who will and won’t represent a given Congressional district in the U.S. House of Representatives, a federal political body. By abandoning the proposition that the federal judiciary has a role in managing the federal elections process to ensure voting rights are preserved, SCOTUS has not only injured itself proceduraly but, as with Congress’s pulling back from asserting its decision-making coequality, essentially eliminated its own standing to rule on these matters, and thus reinforced the notion that the President, and citizens, can not and should not look to the federal judiciary for remedies to the flawed legislative process no matter who is hurt or when injury might occur.

    Go!Report

    • Avatar Burt Likko in reply to Philip H
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      says:

      Well, Rucho v. Common Cause and Shelby County v. Holder weren’t really the cases I intended to address here. But the right to vote is a fundamental right, and one that was unenumerated in any way until 1868. Even then, the Constitution generally speaks of the right of an individual to vote in a comparative way: women get to vote on the same terms as men, for instance. So the right of an individual to vote is itself an IX Amendment, caselaw-driven concept.

      Which is no reason to dismiss its importance. We can and should decry the High Courts’ actions in 2013 and 2019 abdicating the courts’ role in ensuring that the right of individual people to cast meaningful votes is enforced. It’s true that enforcement of that right is a complicated thing and one which raises some difficult and abstract questions. But just because an question is difficult does not mean it can be ignored.

      To the extent that individual voting rights are part of the “right to be governed by the Constitution” that the OP discusses, and if all of the coordinate branches of government go along with their abridgement, then the remedy is political, just as in the case of other more non-specific sorts of non-, contra-, or extra-Constitutional governmental practices enacted by the government itself:

      [T]he public requires a substantial degree of durable outrage sufficient to reverse course in both congressional and presidential elections, which may take a long time to wind around.

      Get pissed off. Get your friends and neighbors pissed off with you. Make your pissed-offitude known to everyone. Demand a change of direction from the elected officials. Find a way to mobilize people and demand corrective action. If your state has citizen initiatives, get one put on the ballot to delegate control of redistricting to nonpartisan commissions. And be prepared for frustration: the wheels of democracy are heavy and grind slow.Report

      • Avatar Philip H in reply to Burt Likko
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        says:

        One could argue that the Voting Rights Act was a great expression of pissed off-ness which the courts failed to protect in their abrogation of their co-equal status.Report

      • Avatar Mike Schilling in reply to Burt Likko
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        says:

        And end the Republican partisan takeover of the federal judiciary by ….?Report

        • Avatar Urusigh in reply to Mike Schilling
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          says:

          You don’t. Implicit in this Right to the Constitutional Government is a right to judges who strictly rule based on the Constitution as it was written (e.g. Originalists), not activist judges who employ the contradictory fig leaf of “a living Constitution” to ignore the actual limits specified in the document and the resulting separation of powers in order to legislate their preferred politics from the bench. If you want to legitimately change the Constitution you need to follow the amendment process it specifies, not just seat a bench majority of democrat-appointed activist judges.Report

  2. Avatar JoeSal
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    says:

    “..Individuality was not recognized as the absolute right of every person, and was not known as the great principle of order and harmony.”Report

  3. Avatar Oscar Gordon
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    says:

    The first is when that governmental act is in furtherance of a fundamental right…

    It always strikes me that people find the converse (act to further restrict a right) is also acceptable, as long as they don’t like the right in question.Report

  4. Avatar Michael Cain
    Ignored
    says:

    Re the footnote… This came up in Arizona v. Arizona a few years ago. Specifically, that Arizona’s original state constitution included a strong initiative power and that Congress didn’t complain at the time. If I remember Ginsberg’s opinion properly, it didn’t go so far as to say Congress couldn’t take another crack at it.Report

  5. Avatar Gabriel Conroy
    Ignored
    says:

    I was all set to disagree with you until the last paragraph of your OP. That captures pretty much my thoughts.Report

  6. Avatar Urusigh
    Ignored
    says:

    “To live “in a republic, not a democracy” means that sometimes the legally valid actions of the government are contrary to the wishes of the majority. ”

    This is not quite right, depending on what is meant by “majority”. It is correct as an argument against anything like polling or national popular vote, but incorrect in the sense that any legislation passed by Congress by definition DOES represent the wishes of a majority, specifically a majority of the States, as represented in the Senate by their Senators. We live in the “United STATES of America”, NOT the “United People’s Democracy of America”. The correct level of abstraction when analyzing federal actions for majority support is not polling or votes of individual citizens, but rather the votes of the States in Congress. Anything else is essentially a fallacy of equivocation.

    As such, it’s actually a rather interesting question of whether those frivolous “climate harm” lawsuits actually infringe state’s rights by attempting to bypass and overrule their own state legislatures and congressional representatives.Report

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