I’ve been waiting for years for some state legislator to give this speech when the baying hounds are out, howling “Unconstitutional!” about some state Bill:
I took an oath upon entering office to uphold the Constitutions of the United States and of our dear state. You can look up my oath of office if you like. I never took an oath to cheerfully agree with whatever the United States Supreme Court, or our honorable state Supreme Court for that matter, says about what’s constitutional. I never took an oath to speculate that a Supreme Court would disagree with my own good faith interpretation of our Constitutions, and to wave the white flag before that bogeyman before ever voting for a law I think the courts might wrongly invalidate.
Part of the national Constitution is that powers not given to Washington, DC, are reserved to the states or to the people. Part of our system of government is that the states and the people have the right to govern themselves by laws they consider proper and, in the case of legislators sworn to govern constitutionally, that are constitutional. Part of our system of government is that courts don’t have a free-floating mandate to invalidate laws they think insufficiently progressive (or in another era, too progressive) if there’s no constitutional infirmity in those laws. My oath of office to defend Constitutions includes a duty to defend our system of self-governance against illegitimate judicial (or executive) encroachment.
The courts have no troops and no armaments. They only have the power of persuasion. I’m unpersuaded by a number of their decisions.
There comes a time, of course, when the highest court has ruled on a question, that the question is settled.
Abe Lincoln faced that with Dred Scott. The Supreme Court had the last word. The case was over. Sandford won. Poor Mr. Scott was still a slave. But the status of Mr. Scott was the question in “Dred Scott v. Sandford.” It wasn’t “Dred Scott v. The Peculiar Institution.”
So the question of slavery was not settled thereby – not politically and not legally. One could use the Dred Scott case to predict that future litigants with similar facts and legal theories would also lose (that a godawful civil war would ensue was less predictable). But there was always a chance that the next runaway slave would find a better lawyer, or a better legal theory, or both.
The doors of the courts must be open to those possibilities. Our fundamental system of self-governance must be open to those possibilities. If it’s not, we’re at the mercy, all 310,000,000 of us and forever, of one poor lawyer’s ill-chosen legal theory or bumbling advocacy – not to mention the increasingly prevalent scandal of our Attorneys General throwing cases (preemptively announcing that the laws they’re elected or appointed to defend are indefensible). Friend of the Court briefs can help lessen that threat, but they cannot eliminate the possibility of hundreds of millions cast into darkness under the shadow of a squabble between a handful of unelected litigants and amici curiae.
So on the matter before this Chamber, I will honor my oath of office. I will weigh the benefits of the Bill as public policy along with its constitutionality. I will listen in debate to the opinions of our dear state’s various law professors, bearing in mind, however, that they are high caste and have their own take (if not downright spin) on matters as surely as do we low castes (as the high castes remind us, while exempting themselves, so pointedly at times).
And when it’s time to vote, I’ll vote for the Bill if I think it’s sound, and needed, and constitutional, giving due weight to the opinions of other on all those matters.
But I will not borrow trouble and cower in fear of a judicial decision that might some day tell me I was wrong. I’ll read that opinion, if and when it comes, to see if it persuades me.
And if it doesn’t, we’ll start all over again until God or my constituents call me home.
I wish I could attribute that speech to a source other than my own imagination.
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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)