Comment: Has Supreme Court forgotten who the law serves?
Published 1:30 am Tuesday, July 19, 2022
By Mary Murphy / The Herald
Recent U.S. Supreme Court rulings have resurfaced the long-standing debate over whether the United States is a constitutional republic or a democracy. A debate which many experts give a gray-area answer— that we are both— a hybrid.
It might first be beneficial to give a refresher on your high school government class. A democracy functions as a form of government where power is “vested in the people and is exercised by them directly,” through functions such as popular voting. While, a constitutional republic is a state in which the interests of the people are represented by their elected officials. Additionally, the constitution has the highest power over the general public’s opinions.
A recent NPR poll found 64 percent of Americans opposed the Supreme Court’s ruling overturning Roe v. Wade. To first hear that the majority of our citizens’ interests are not represented by the Supreme Court had ignited a wave of anger, we have seen in recent weeks.
However many people have been getting angry without actually knowing: How was this able to happen, and was it technically the right decision for the Supreme Court to make? The five justices who voted in favor of overturning Roe were appointed by presidents who lost the popular vote. Ouch, that one hurt.
The reason Trump was able to win the presidency, and the reason he was able to appoint three of those justices, is because of the electoral college; a function we have put in place because we are, partially, a constitutional republic. While this does not happen often, it has happened before. Besides the 2016 election, the most recent president to reap the benefits of the electoral college was George W. Bush, in the 2000 election.
These Supreme Court justices, along with the electoral college, are also a product of our effort to be a constitutional republic. Although these justices have not made their opinions and political beliefs a complete mystery to the public, they are expected to remain unbiased in their decision making.
A Supreme Court justices’ job is to his or her rulings on the Constitution; because the Constitution holds the highest power in a constitutional republic.
While the Supreme Court did not have to make a decision on Roe v. Wade’s constitutionality, five of them felt obligated to do so, even knowing what the majority of the country wanted as an outcome.
Writing for the majority Justice Samuel Alito’s opinion argues against court precedents heavily, basing his arguments on the text of the Constitution. It is clear the justices who voted to overturn Roe and and a second precedent — Planned Parenthood v. Casey — aimed to represent the interests of the Constitution over the interests of the people: even acknowledging that the Constitution was made to serve the people.
“We hold that Roe and Casey must be overruled,” wrote Alito. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely; the Due Process Clause of the Fourteenth Amendment.”
While it is commonly accepted that the Supreme Court is “just doing its job,” many people still find this process to be out of touch, outdated and a danger to our democracy.
The fact that the Constitution was written more than 200 years ago is commonly brought to attention during these debates. The way in which we decided to form our government and how we decided it would be best functioning was decided by people that represent a very small portion of our country’s population in the present day.
The authors of the Constitution, some believe, deserve deference, and some feel the opposite. Thomas Jefferson for one, is responsible for many great parts of our history, but also responsible for participating in its most horrible; slavery.
These leaders, when they made the decision to create certain aspects of our government like an electoral college, did this for concerns they probably thought to be reasonable.
The electoral college was made because our leaders in the 1780s did not want any of the states to be represented disproportionately, and two, because they did not want U.S. citizens to make “uninformed” decisions when voting: hence the entire legislative branch of government.
The electoral college, explained in simple terms, appoints electors for each state based on the winner of the popular vote in each state. The amount of electors appointed in each state varies with population and is equal to the total number of senators and representatives in Congress.
The fate of 329 million people, is quite literally in the hands of just 538 individuals.
The electoral college has served us for some time, but it is not a new idea that a legitimate government is also an ever changing, and should be open to change, an idea most famously preached by John Locke, the British political philosopher, in his Second Treatise of government.
Simplifying Locke’s words, it is argued that when the people feel a need to rebel, they are not really the rebels; the government is. Locke argues this is because the government rebelled from their promise to represent the interests of the people.
“In these and the like Cases, when the Government is dissolved, the People are at liberty to provide for themselves, by erecting a new Legislative, differing from the other, by the change of Persons, or Form, or both as they shall find it most for their safety and good … men can never be secure from tyranny, if there be no means to escape it, till they are perfectly under it: And therefore it is, that they have not only a right to get out of it, but to prevent it, Locke writes.
Locke then continues to explain that, if people find themselves in a situation where they would like to rebel, they have a right to do so, and the government has to allow for change and dissolution to occur if necessary.
If the ideas of government reform have been around for centuries, conservatives do not have the right to call liberals too ambitious or needy; they cannot claim that liberals are extreme or radical for questioning the Constitution. Nor is it radical to question the power of the Supreme Court. It is radical for the Supreme Court to not act in the interest of the nation’s people. It is radical for the Supreme Court to ignore the people’s wishes.
The ideas of not only reforming the electoral college, but expanding the Supreme Court, or changing the length of terms of Supreme Court justices, have been discussed for many years; there is nothing new or radical about this.
The Supreme Court’s recent rulings have only increased the demand for change, in our legislative branch, and judicial branch, as the decisions regarding Roe and other rulings have shown to not represent what the majority of the country desires.
This demand will not go away, it has remained present since 2016, and has, in history, been so powerful that actual change was made. We need to do a better job of being a government that is comfortable with change, just as we have in the past.
If we had not been comfortable with change in the past, here are a few things that would still exist today: British control, internment camps, lack of women’s rights, segregation and slavery, to name a few.
Mary Murphy is a HeraldNet digital news intern and is a student at the University of Washington, where she has served as opinion editor for The UW Daily student newspaper.
