Horse-and-buggy constitutionalism

The Supreme Court majority reveals extraordinary arrogance about its rulings' impact on real lives

Amish practice has evolved in some places, but the rules — like some in the wider community — are perplexing. (Photo by Randy Fath on Unsplash)

---

Along a country road not far from our place the other day, an Amish fellow was driving a tractor — an odd sight, you know, since the Amish are known for horse-and-buggy transportation. Apparently the rules limiting technology that could introduce foreign ideas into Amish culture are a bit more fluid than imagined by we “English,” as non-believers are all labeled: Amish people can’t drive a car, but they can hire somebody to drive them, and while many Amish communities permit 12-volt car batteries, none allow 120-volt electricity.¹ So, no, I don’t get the tractor thing.

Nor do I get the Supreme Court of the United States, though it does give credence to the Amish fear of invasion by a foreign culture. It's increasingly clear that the court’s conservative majority is subject to Amish-like opacity and contradictory impulses. In recent days, they have ruled that states can’t regulate handguns, but can regulate women’s bodies; and they have decreed that Congress isn’t allowed to delegate its authority to federal agencies — starting with regulation of power plant emissions — because, well, because that wasn’t specifically authorized by our nation’s founders.

Not that the authors of our Constitution could have imagined the need to regulate carbon emissions from power plants, or, for that matter, the existence of a power plant, other than a wheel on a stream. The world has become a strange and complex place, as good Amish folks would surely agree, and the best approach, according to  those six right-wing lawyers on our high court, apparently is to try to turn back time.

So we are to restrict ourselves, apparently, to simple solutions rooted in the 1700s to complex problems that imperil life in the 21st century. What could possibly go wrong?

An intellectual argument supports the court’s drift, to be sure. It can be traced to the Progressive Era, that period roughly from the 1890s to World War I, when the U.S. government was confronting the problems created by industrialization, urbanization and political corruption. Congress found itself unable to cope with the volume of work needed to restrain those who would take advantage of citizens for personal profit, so it began to draft laws more broadly, empowering executive branch agencies to carry them out. Big money interests didn’t like it, but the process gained more acceptance during the New Deal, when modern government emerged to lift the nation from the Great Depression.²

Businesses still don’t like the idea of government regulating their freedom, of course, but the so-called “administrative state” has the advantage of efficiency and clarity. It’s the way our government has run throughout the lifetimes of everybody reading this, but the pushback that began at the start of the 20th century has metastasized into a right-wing movement that threatens to undermine the functioning of government overall. That’s what holds the Supreme Court’s current majority in thrall.

There are more than 9 million federal workers these days, which is going to be quite a human resources management headache for the 435 members of Congress, assuming the eventual wide application of the Supreme Court’s reasoning in this week’s case targeting the Environmental Protection Agency. The 6-3 decision in a case brought by West Virginia — a state with politics largely controlled by the coal industry — held that even though Congress had specifically empowered EPA to use the “best system of emission reduction,” it was still unconstitutional for Congress to delegate its authority in that way.

But when it comes to decision-making, Congress is a mess. It struggles every year to complete even the fundamental task of passing a budget, and sometimes it divides so bitterly over raising the debt limit to cover spending that it already has authorized that the government shuts down. The Senate is paralyzed by the filibuster and the House is likely next year to slip into the control of Republican leaders who eagerly embrace the bald-faced lies of Donald Trump, a would-be tyrant, and who view the Jan. 6 insurrection as just an exercise of free speech (which happened to leave some people dead). Do you trust the judgment of those people to run our government?

So there is virtually no chance that Congress can take decisive action to limit the carbon emissions that fuel climate change, which Justice Elena Kagan called, in her dissenting opinion, “the greatest environmental challenge of our time.” Nor is Congress likely to be able to deal with a lot of work that it now empowers federal agencies to handle but that is the elar target of the conservative justices’ ideological ire.

Those clever justices do, indeed, cite legal theories for their ruling — such as the so-called “major questions doctrine.” It’s a favorite of right-wing lawyers, so it has a place in the underpinning of this ruling, along with the “nondelegation doctrine” and the “Chevron deference,” all of which you can imagine the justices coolly discussing with their smart young law clerks behind the court’s bronze doors, even as Washington practically boils in seasonal heat.

But that’s nothing: the big heat is coming. Since the Industrial Revolution, the planet has already heated by 1.1 degrees Celsius, which is more than two-thirds of the way toward the temperature that scientists say will lead to catastrophic heat waves and widespread species extinction. The justices’ disregard for the impact of their ruling is staggering in its arrogance.

Conservatives for decades have eagerly bashed the liberal elite as being out of touch with ordinary people. But it is clear from the West Virginia case ruling that the needs of ordinary folks mattered not a whit to the six pro-coal justices, because their intellectual exercise left no room for consideration of the crop failures, water shortages, widespread migration and financial ruin that climate change will bring to this country and the world. It’s the partisan right that has thus emerged as elitist, embracing as this decision does the interests of rich corporations over the needs of ordinary citizens.

It's not that we should want the justices to abandon the Constitution; rather, we may wish for them to recognize that our founding document, no less than individuals, can evolve to confront the realities of the day. Locking in the Constitution to a handful of documents reflecting the mindset of a cluster of rich white men in the late 1700s is an absurd approach to government.

But perhaps the conservative justices can’t help it, because they’re biologically predisposed to resist change. The emerging field of political neuroscience suggests that conservatives are more eager to embrace authority and predictability, while liberals are comfortable with novelty, nuance and complexity. It has to do with the size of the gray matter in different sectors of the brain.³

Knowing that, however, doesn’t diminish the sense of anger that we may rightly feel as our peril from climate change rises, as it will more lethally now, thanks to the rigidity of six judges — half of them put in place by a president who twice lost the popular vote. For that reality, we may thank the electoral college, which, of course, is a relic of the horse-and-buggy days, just like the thinking of that judicial majority.

1. https://www.usatoday.com/story/news/nation/2014/08/15/amish-ten-things-you-need-to-know/14111249/

2. https://www.nytimes.com/2022/06/30/us/supreme-court-epa-administrative-state.html

3. https://www.scientificamerican.com/article/conservative-and-liberal-brains-might-have-some-real-differences/

---

---

NEWSCLIPS FROM THE UPSTATES

Dispatches from our common ground *

Wherein each week we look around what we call the nation’s Upstates — those places just a bit removed from the center of things — to find illuminating news and intriguing viewpoints, which you might not otherwise see.

This week, we share reporting published here:

• Fort Smith, Ark. (Fort Smith Times Record, swtimes.co

• Jacksonville, Fla. (The Florida Times-Union, jacksonville.com)

• Fall River, Mass. (The Herald News, heraldnews.com)

• Reno, Nev. (Reno Gazette Journal, rgj.com)

NOTE: The complete “Newsclips from the Upstates” section is available only to paid subscribers. Thanks for your support!

ARKANSAS

Unrecycled recyclables leads to lawsuit

The world market for recyclables is drying up, and many municipalities are having trouble finding buyers for what citizens dutifully set out in bins weekly. That led to an unusual lawsuit in Fort Smith, Ark., according to reporting by Alex Gladden in the Fort Smith Times Record. A resident is suing the city for failing to notify citizens that it wasn’t recycling what it picked up during an almost two-year period starting in mid-2015. The lawsuit asks $853,000, which would provide a small refund of perhaps $30 each to consumers. The city administrator says that all the recyclables it collects are now being recycled. Not to question their credibility from afar, but it’s kind of hard to imagine, since the EPA says that only about 35 percent of solid waste gets recycled nationally.

FLORIDA

‘Don’t Say Gay’ predictions are, sadly, coming true

An examination of the first few months since Florida’s so-called “Don’t Say Gay” law became widely discussed finds that more than a dozen times since the beginning of March, LGBTQ students have confronted censorship and harassment in school. As reported by Kathryn Varn in the 19 Gannett newspapers of Florida, students who organized pro-LGBTQ rights demonstrations were silenced by administrators or bullied by peers; books with LGBTQ characters or themes have been removed from school libraries, and teachers who tried to be welcoming to LGBTQ students were disciplined. The law took effect on Friday.

MASSACHUSETTS

New England becoming an abortion rights haven

Since September, when Texas law prohibited abortion after detection of a fetal heartbeat, New England has drawn a lot of out-of-state patients seeking abortions, according to reporting by Hadley Barndollar for Gannett newspapers. Now, with the U.S. Supreme Court overturning the nationwide right to abortion, experts are predicting that the influx of patients will continue. Massachusetts Gov. Charlie Baker, a Republican, signed an executive order to protect abortion providers and patients from out-of-state restrictions, and there are several similar efforts underway in all six New England states.

NEVADA

Record set for blindfolded mile

Question; What makes a mile run in just under 7 1/2 minutes a record-setter? Answer: When it’s run blindfolded. That’s what 43-year-old Megan Merenda did in the Black Rock Desert recently, according to reporting by Amy Alonzo in the Reno Gazette Journal. The run also raised funds for a clean water charity. “It was really fun to do something ridiculous and have some levity when there is so much seriousness in the world and we’re all kind of struggling,” Merenda said. 

---

ENDNOTE 07.02.22

Honoring the 4th of July

Independence Day comes just three weeks after Flag Day — what, you don’t know about Flag Day? — and so at our home, we hang the Stars and Stripes in mid-June and tend to not take it down for a long time. One of my friends expressed surprise, knowing of my progressive politics — suggesting that the display made my house look like the home of a Trump supporter.

I don’t buy that at all, any more than I would accept the notion that the evangelical right has the ground of Christianity all to itself. I’ve been a patriot since I was a little boy, stirred by such emotional moments as hearing “God Bless America” when the lights illuminate Mount Rushmore at dark, or when the flags around the Washington Monument snap smartly in the breeze. I refuse to give up my right to honor the flag and the country it represents just because some faux patriots who don’t care about the threat that Donald Trump poses to democracy wrap themselves in the flag; nor am I going to give it up even though some far-right nationalists egged on by Trump used flagpoles to attack the Capitol on Jan. 6.

In fact, progressives need to claim the symbols of our democracy as their own, because yielding their use to only those who don’t respect the norms that have sustained our nation will leave the interpretation of the symbols in the hands of those who would despoil them. It’s our flag. It’s our Independence Day. I’m proud to celebrate it.

With all the terrible problems confronting our nation — which I detail in this report each week, of course — it remains a place where we can hope, and where there’s a chance to bring the promise of liberty to everyone. America has lost a lot of ground in recent years — even in just the past historic month — and many of us are rightly ashamed of so much that has transpired here. As Hillary Clinton said the morning after the 2016 election, “It will be a very long time before we get over this.” Indeed, we won’t turn it around easily, but know this: We certainly won’t make up lost ground if we yield an inch to those whose actions seek to deny some Americans the rights that we all value.

So on the 4th of July, I encourage you to fly the flag, and someday when you next get the chance, salute it proudly. But don’t lose a minute from the fight to make us more proud of what that flag stands for.

Happy Independence Day to all from The UPSTATE AMERICAN.

Thank you for reading, and for joining me on our *common ground, this America.

-Rex Smith

@rexwsmith