Quote of the Day:
Justice Ruth Bader Ginsburg nonetheless writes for the liberals and Anthony Kennedy that when the Framers wrote the word “legislature” they didn’t mean “legislature.” They meant it loosely because “the people themselves are the originating source of all the powers of government.”
–Wall Street Journal
Justice Ginsburg was writing in another 5-4 majority Supreme Court ruling of this woeful term. At issue was the Elections Clause in the Constitution, which gives the legislatures the authority to redistrict. The case involved a ballot measure in Arizona that took the power to draw congressional districts away from the legislature and gave it to a five-person commission.
The ballot measure, as the Journal points out, was built on a good intention: to remove the redistricting authority from politicians who inevitably draw it for political advantage. So far, so good. But it comes up against the Constitution that gives the authority to the legislatures.
In her opinion, Justice Ginsburg continues what I think of as the Humpty Dumpty direction of the U.S. Supreme court:
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
The majority of the U.S. Supreme Court Justices denied that the clear meaning of words in the Affordable Care Act meant what they said and then again denied that when the Founders wrote the word "legislature" they actually meant the word "legislature." The Journal comments:
The Founders weren’t perfect but they were more precise wordsmiths than the average Supreme Court Justice. For example, when they meant “the people,” they wrote “the people.” So when they wrote “the legislature,” confidence is high that they meant “the legislature.”
The Journal continues:
The majority’s ruling has “no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court,” Chief Justice John Roberts writes in withering dissent. The Constitution, he notes, uses the word legislature in 17 instances where it cannot possibly be interpreted to mean “the people,” and Supreme Court precedents have specified that in the Elections Clause the word legislature means “the representative body which ma[kes] the laws of the people.”
When the Constitution was written, state legislatures were given the power to choose the Senators the states sent to Washington, D.C. It took decades, and the Seventeenth Amendment, to give that power directly to voters. “What chumps!” Chief Justice Roberts writes, “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?”
The cure for partisan gerrymandering was not to turn the Constitution into a Rorschach test wherein four liberal Justices plus Anthony Kennedy can see whatever they want. The reason it was so arduous to change basic points in the Constitution, requiring an amendment, was that it gave time and provided checks and balances to determine the wisdom of the changes. Now, it just has to appeal to Justice Kennedy and the four liberals (or be an ObamaCare case that calls out the Chief Justice's strange commitment to whatever verbal gymnastics required to save this unpopular, ill-written law).
As of June 2015, we are in a brave new world wherein the Supreme Court is no longer bound by the clear meanings of clear words. It is the Humpty Dumpty Court.