“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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  • Fireblazes

    Oh Boy! keyword searches that you think would open up an article on the Constitution, but instead open a advert pop-up that won’t go away until it is damn good and ready. Worse than the ads that cover over the whole page. Eventually if you click enough times you get to the article.

  • NMRon

    Isn’t it about time that media dropped the fiction that conservative give absolutely zero shits about the constitution, patriotism, religion or any of their other bogus claims to the ‘high ground.’ Conservatives care about power and that’s it. Power to victimize and abuse whomever they choose, whenever they choose.

  • taxicolor

    Holding the founding fathers as demigods and declaring their morality views the same as their own shows that they have no clue as to who these founding fathers were and what their beliefs and morality was.

  • emjayay

    Except that in this case it’s just tantrums. Tales told by idiots, full of sound and fury, signifying nothing.

  • emjayay

    Obama isn’t always a Dictator. Just today I read that he’s a King.

  • gratuitous

    Lindsey Graham as the voice of sort-of reason is indeed weird. What’s weirder to me is the inability of the popular media to see any contradiction at all between Republican yammering about judicial activism on one hand, while decrying the tyranny of the executive on the other. Apparently nobody’s supposed to make any decisions. Well, unless those decisions comport with what Republicans want.

    None of them seem to remember Dim Son Bush pronouncing his satisfaction with a dictatorship, as long as he is the dictator, the decider.

  • emjayay

    That’s a bit of a blanket generalization.

    In reality, they are usually very willing to quote the Constitution using lines from the Declaration of Independence, and wave lots of American flags while putting their hands over their hearts and explaining how God created the United States and also marriage.

    OK, for some of you, >;-)

  • emjayay

    Huh? I really should include snarky faces, I guess >;-)

  • emjayay

    You don’t understand satire, do you?

  • emjayay

    Or more specifically, certain words of passages they like while ignoring the rest. Kind of like they do with Leviticus, where they only think about 2% of it actually counts.

  • Bill_Perdue

    More cuteness – an admission that Democrat and Republican politicians are irredeemably and totally corrupt. And he wants us to vote for that.

  • emjayay

    All politicians are in it exclusively for money and power and are slaves to their corporate overlords and have no principles whatsoever. Soon they will all be turned out by the dictatorship of the proletariat, instituting an ideal Socialist state as a prelude to an even more ideal communist one.

  • Bill_Perdue

    Quaintness. A veteran of the Cliveden Set is here to entertain us with antique irrelevancies.

  • emjayay

    We proletarians will be the dictators any day now.

  • MaryNGatlin
  • That’s pretty much it — if you dissect the rhetoric at all, it’s quite obvious that “conservatives” — and especially conservative “Christians” — really despise the foundations of American government.

  • One reason I had thought Roberts might vote with the majority is that most major corporations came out in favor of marriage equality. I doubt that it was the Kochs that got to him, but I can’t think who it might have been.

  • ComradeRutherford

    “they will defy, disobey, and ignore the court’s rulings.” That to me is the most disturbing. Civilization is a construct based on everyone playing by specific rules. When people declare they won’t pay by the rules anymore, the result is the collapse of civilization.

  • ComradeRutherford

    Brilliant piece.

    the independent judiciary is what prevents 51% of The People from putting to death the 49% that lost that vote.

  • mark_in_toronto

    He was nominated by Bush II . . . duh.

  • Bill_Perdue

    It does have a public face in terms of federal judges confirmed by Congressional hearings.

    Fraud enters the picture as a result of the lack of real differences by the twin parties of the rich. Contests for the federal bench are, like contests for Congress and the WH, between two gangs with identical programs but big differences on who should reap reap the spoils and collect the bribes.

  • Bill_Perdue

    Yes, especially because they upheld Human/GSKcare and just limited EPA controls on emissions controls.

    The Supremes occasionally uphold rights guaranteed by the Constitution but only when democratic and foreign pressure forces their hand. On all other questions they imitate other politicians and hinder unions, uphold deregulation and vote for their owners, the rich.

  • nicho

    These are not people who think ahead.

  • Bill_Perdue

    In other, but unrelated news, the death agony of capitalism is back on the front burner. “U.S. stock markets fell sharply on Monday after a global sell-off as investors grew increasingly skittish over the prospects of twin debt defaults by Greece and Puerto Rico.

    Greece appeared likely to miss a critical debt payment to the International Monetary Fund on Tuesday as negotiations over unlocking additional aid from its European creditors broke down over the weekend. Banks have shut down for the week, and citizens can withdraw only 60 euros ($67) a day from their accounts. Meanwhile, in Puerto Rico, the island’s governor is slated to announce later Monday that it cannot pay back more than $70 billion in debt.

    The pair of debt crises exposed a new fragility in the financial system and to many observers came suddenly after a period of tranquility. Initial signs suggested that the fallout from the looming defaults would be contained, though economists and analysts warned they could have more significant ramifications if they spur a wider panic.” http://www.washingtonpost.com/business/economy/global-markets-fall-as-greece-closes-banks-and-twin-defaults-loom/2015/06/29/c1a48d72-1e76-11e5-aeb9-a411a84c9d55_story.html?wpisrc=nl_evening&wpmm=1

  • Badgerite

    I thought it was Obama who was supposed to be “bullying the Court”. Shorter Cruz and Jindal:
    “Nice little Court ya got there, govenuh. Be a shame if somethin was ta happen to it.”

  • goulo

    As the Onion article says… they will “someday be portrayed as villains in an Oscar-winning film about the fight for marriage equality.” :)
    http://www.theonion.com/article/scalia-thomas-roberts-alito-suddenly-realize-they–32972

    It is really baffling to me that most people seem to look back with embarrassed disgust on the virulent racists who opposed equal rights for black people in the 60s, yet so many people are now doing the same thing, opposing equal rights for gay people. Do they really not realize that the future is going to look back on them with the same embarrassed disgust? Or they know, but just don’t care?

  • What’s especially dismaying is how most of the declared GOP candidates for President in 2016 have openly declared they will not “uphold, protect, and defend the Constitution of the United States,” as their oath of office would require. Whether it’s marriage equality or LGBT rights in general, or the ACA being upheld yet again or any of the other recent politically divisive decisions coming from SCOTUS, they’ve been crowing how they will defy, disobey, and ignore the court’s rulings.

    The federal courts and the Supreme Court are there for a reason, including having the power to determine whether laws — federal, state, or local — are constitutional or not. It’s one thing to disagree with a SCOTUS decision, and another to use the power of the Executive or Legislative branches to attempt to reverse a decision — both are legitimate and within the law. It’s something else entirely — something disturbingly autocratic — to simply declare the decision won’t be respected.

    The Republican party’s ostensible leaders have declared war on the rule of law. And have decided that their preferences and fundamentalist Christian beliefs should trump everyone else’s, up to and including the abridgment of constitutionally-protected civil rights.

    The language they’re using now would seem to suggest they think it’s fine for clerks to invoke any religious belief as reason not to do their jobs. It’s not just same-sex marriage either, but imagine if an entire county clerk’s office said they don’t think atheists, agnostics, and non-Christians should be allowed to marry. And let’s not forget how often fundamentalist beliefs were cited as the reason for refusing to allow interracial couples to marry — a situation that changed only after (ta-da) the Supreme Court said such bans were unconstitutional.

    The weird part is how Sen. Lindsey Graham seems to be the only voice of reason, having stated in the last day that the court is well within its prerogatives to make these calls. He’s even suggested the GOP should drop its platform position calling for a constitutional amendment to ban same-sex marriage and just let it go.

  • pogden297

    You don’t think the process for selecting federal judges is political? It’s every bit as political as in those states where judges are elected. Its just a different type of politics. it’s politics behind closed doors the worst kind of politics.

  • nicho

    Right. Because all we need are Supreme Court justices who have to spend most of their time going hat in hand to corporations to get enough money to campaign to hold their seat.

    The GOP’s use of the Constitution is like the right-wing Christians’ use of the bible. They hone in on the passages that support their lunacy and slide right over those that don’t.

  • nicho

    Roberts’ dissent was beyond moronic. If he wrote it or even read it, he shouldn’t be on the court. It was that idiotic. The other possibility is that he or his clerk were sabotaged by someone who gave them seriously faulty information. His assertions about marriages in other societies were laughable.

    http://www.theawl.com/2015/06/forget-scalia-justice-roberts-is-a-total-marriage-moron

    The other possibility is that Roberts wanted to vote with the majority, but the Koch Brothers wouldn’t let him, and this was his way of signaling that he was being held captive. Sort of like eye-blinking “Help me” in Morse Code.

  • 2karmanot

    Exactly so!

  • dcinsider

    He cemented a legacy of intolerance and bigotry. You simply cannot overstate how off the walls viscous and bigoted his dissent will read in 20 years. We all know that this issue will be largely forgotten in 2035, but law students will still study this opinion, and they will retract in horror at the viscous language of the old “bigots” that were on the Court back then in 2015.

    The “Roberts Court” will be known largely as a corporate shill, with a nice dose of ignorance and hatred on the side. I hope he’s happy with his little juvenile tirade on Friday, because he’s going to wear that opinion around his neck for eternity.

  • Indigo

    It bothers me deeply that John Roberts had to resort to Opus Dei mumbo-jumbo, claiming equal rights is not covered by the Constitution. I was convinced that Roberts was a decent American, firmly grounded in respect for the Constitution. I was wrong.

  • bkmn

    They don’t care about the country, the Constitution, patriotism, democracy or anything else. All they care about is being in power so they can get their way.

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