Beware of those who disparage the Supreme Court just because they disagree with it

In a July 8, 2022 article in the Los Angeles Times, “Hate the Supreme Court? Our problems actually start with the constitution,” Nicholas Goldberg encapsulates much of the American Progressive Left’s understanding of the United States Constitution.

Progressivism tends toward statism with its profound reverence for the mystical will of the people divined by the best and brightest (such as Goldberg) and foisted on the benighted for their own good. Progressivism, when in ascendancy, rejects checks on the use of power and pursues a unitary government free to immediately meet with wisdom any new problem.

Given this mind-set it is easy to understand Goldberg’s denouncement of the Supreme Court and the Constitution. The Supreme Court, he writes, has made bad decisions. It had not done so when he agreed with its decisions.

He argues that now, with a change of justices prone to archaic thought, it has become clear that the Court is a creation of a woefully out-of-date Constitution created by a small group of white male land owners who had no way of creating a frame of government for today’s military and economic super power of 300 million diverse people. The Constitution as written, he asserts, allows an obviously retrograde Court. Goldberg makes no reference to the ways the Constitution provides for the people through elected congressmen and women to significantly limit the power of the Court. That would undercut his argument about the Constitution being out -of-date, inflexible, insufficiently democratic and dysfunctional.

One solution Goldberg considers is to do away with the republic of different loci of power checking each other. He would get rid of the Electoral College and the United States Senate. A second solution is to insure that the Supreme Court rid itself of originalist interpretations of the Constitution, that is interpreting the Constitution according to its actual words and historical context of the meaning of the words. Instead, The Supreme Court must see the Constitution as a living document and rearrange words and meanings or find new words and meanings to fit the modern needs (i.e. what a plurality or majority need/want at any given time). In reality Progressives want a plebiscite government with no common, generally understood, reliable, frame of government, one of the various abuses of power the constitution was designed to forestall.

The new rights Goldberg wants the Supreme Court to pursue, such as abortion, environmental rights, and union rights, are highly debatable and highly divisive as most highly consequential issues are. The founding fathers understood this would always be a societal/political condition and created a checks and balances federal system (with divided authority inside the national government and among it and the states) that allows government to function and make decisions on such issues without democracy degenerating into mobocracy and a disregard for minority positions and rights. Without the constitutional checks and balances , a stable union of geographically divided and socially diverse people across a continent would be very precarious with a propensity toward oligarchy or despotism. The Constitution does not make the achievement of Goldberg’s social-justice goals impossible, but requires that enough lasting consensus be achieved to not threaten the fracturing and rupturing of national community. The Roe decision, as Justice Ginsburg noted, being an obvious example of not meeting this requirement.

The Constitution addresses things that do not change, human nature and the nature of power, its uses and abuses. It protects liberty and freedom of action and enables Americans to preserve a nation AND govern themselves. In his denigration of the Constitution Goldberg is insisting that those old notions of human nature and power (discussed and pondered for two and a half millennia) are now of no great consequence and should not circumscribe him and other right-and-like-thinking people in pursuing what they know to be best for benighted Americans. The Constitution is a challenge to his modern, superior wisdom.

J. Larry Hood is a retired state government employee who presently teaches world civilization at Midway University and American and Kentucky courses for UK’s OLLI program.