“Constitutional” conservatives are having second thoughts about Article 3 of the Constitution

The word “constitutional” carries a particular kind of weight in the Republican Party. Used to connote an earlier, better time in our country, describing oneself as a “constitutional” conservative affords oneself a particular kind of ideological purity denied to those with whom they disagree. Holding the Founding Fathers as being veritable demigods, invoking the Constitution in such a way implies that the speaker does not hold moral or political convictions of their own; in their view, they have merely read the Constitution to the best of their abilities and adopted the political positions that follow, interpreted through the lens of the Founders’ original intent. And anyone who does otherwise cannot legitimately call themselves a patriot.

Which is why it was ironic, to say the least, that some of these self-described constitutional conservatives responded to the Supreme Court’s series of progressive rulings this week — from fair housing to health insurance subsidies to marriage equality — by claiming that something is wrong with the Constitution. Specifically, there’s something wrong with Article III, which outlines our nation’s court system and jurisdiction.

Plenty of conservatives met the Supreme Court’s recent rulings with simple disagreement. Few, though, went as far a Louisiana Governor and recently-announced presidential candidate Bobby Jindal, who said in the wake of Friday’s ruling:

The Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body…If we want to save some money, let’s just get rid of the court.

Jindal’s solution, as simple as it is anti-constitutional, was outdone by Ted Cruz, who wrote in the National Review on Friday that the solution to what he described as the Court’s “lawlessness” — an odd accusation to make of a body whose decisions are legally binding — is to subject it to elections:

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.

The only part of that paragraph that’s correct is that twenty states have some form of judicial retention elections, which are an uncontested thumbs up/thumbs down vote on a judge following their initial appointment. The rest of Cruz’s claims are, as Justice Scalia would say “pure applesauce.” Judicial elections in all of their permutations are a disaster precisely because Americans, when told to make decisions on complex issues they know little about, are unforgiving people who pass judgment rashly. As John Oliver outlined in a recent segment on the practice:

Oliver actually understates how detrimental judicial elections can be to a well-functioning liberal democracy. The Supreme Court is the only branch of government that emphasizes the liberal nature of our country over its democratic nature. If a majority of voters elect a majority of representatives who pass laws that conflict with the values and protections outlined in the Constitution, the Supreme Court can be the only remaining check on those majorities’ power. Marginal debates about the specifics of the Court and its functionality aside, an independent judiciary is one of the things that our Founding Fathers got right.

"Constitutional," via Creative Commons

“Constitutional,” via Creative Commons

The Supreme Court has the power to interpret the laws passed by Congress, and its justices serve as long as they maintain “good behavior.” Allowing voters to determine what constitutes “good behavior” will achieve Cruz’s goal of changing how the Court interprets laws passed by Congress, which would undermine the very justification for the Court’s existence.

A true constitutional conservative can say that the Supreme Court’s rulings on Obamacare and marriage equality are incorrect (and they’d be wrong). What they can’t say if they wish to cling to their constitutional mantle is that the Supreme Court’s rulings are so bad that the Court itself needs to change.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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