Are Senate Rules and Supreme Court Decisions Consistent with the Constitution?

Let me start with a disclaimer.  I am not a lawyer nor a Constitutional legal expert.  But in the past decade, I have been troubled by an unprecedented degree of challenge to the institutions of our Republic in the past decade, to the rule of law and the application of Constitutional requirements to our governing processes.  I hoped that I would find protections in the Constitution that would provide a remedy to many of these challenges.  But I have concluded that many of these challenges have come from the failure of elected officials and Supreme Court Justices to apply the requirements in the Constitution with a respect for the limits of power and authority with common sense interpretation of the Constitutional language.  Which means we are not being governed by an unbiased reading of the Constitution, but by laws and rules that either ignore the Constitution or reflect an ideologically biased interpretation of the language in the Constitution.

Before looking at some specifically troubling examples, there are some principles of Constitutional interpretation or application to current issues espoused by these officials, that seem to me to be at odds with a common sense reading and the pretty obvious intentions of the Founders.  See what you think.

First, did the Founders leave us with any guidance about how to interpret and apply the language of the Constitution and Amendments to governing actions and laws?

I didn’t find any guidance on “how to govern” in the Constitution.  It is an amazing and even miraculous document, but it focuses on the “structure” of a new-to-the-world government – one that is designed to derive its power from the consent of the governed, and to protect the liberty of all citizens.  The principle of the Constitution is to limit the ability of one person, one group, or one branch of government, especially the President, from acting to unjustly limit the liberty of the people. As such, the limits of governmental powers are divided across the 3 branches of the government, with “checks and balances” on the powers of each branch provided by the other 2 branches.

But in reading the Constitution, it is easy to overlook a one sentence statement in the Constitution that does provide some guidance on how the Framers intended the implementation of the Constitutional Articles and Amendments in our laws and governing processes.  That sentence is the Preamble to the Constitution.  Read the language with an open mind and see if you find guidance for how our laws and governing processes should be implemented:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The key words in this sentence, related to guidance on how to implement the Articles and Amendments which follow, are these: “…in Order to …”. Doesn’t this language imply a purpose, an outcome, that the Articles and Amendments in the Constitution are intended to result in for the United States and the people? I you take an action “in order to” accomplish a list of outcomes, isn’t that the purpose for taking the action?  And wouldn’t you judge if the action taken was correct, based on whether the actions accomplished the outcomes?

How are we doing in our 24th decade under the Constitution?  Have our laws and Supreme Court decisions of the past decade or so resulted in “insuring domestic Tranquility?” Are they effective in “promoting the general Welfare?” Shouldn’t these questions be part of how the Constitution is applied to our laws and the rules that guide how we are governed?

Second, are the rules and processes for governing put in place by the elected officials in each House of Congress, as authorized by the Constitution, consistent with the language and intent of the Constitution?

Let’s look at Article 2, Section 2, regarding the President’s authority to make nominations and appointments to many of the most important positions in our government that are not directly elected by the votes of citizens.  This includes the members of the President’s cabinet, Federal Judges and Supreme Court Justices, Ambassadors,  and senior officers in the nation’s military forces.  The language as to how these powers are to be implemented seems to be very clear.  Here’s the excerpted language:

“… and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …”.  Now, this seems to be very direct and unambiguous language.  There are a couple of areas where interpretation of language needs to be made objectively by the elected officials and accepted by the citizens:

·       “Advice of the Senate” – Could the language of “Advice” allow for any other interpretation than requiring interviews, hearings or public reviews of the record and qualifications of the nominee for whatever position by the Senate?  Or could “Advice” be just a prejudicial judgement based on race, creed, or party membership?

·       “Consent of the Senate” – Could the language of “Consent of the Senate” allow for the Senate Majority Leader to decide independently that a candidate will not be given hearings or interviews, nor receive a vote, up or down, of the full Senate?  Is there any other way for the “Consent of the Senate” to be interpreted under our Constitution than to require a vote, up or down, of the full Senate?

·       Is there anything in this language that gives the Senate Majority Party Leader the power to decide not to follow this requirement of the Constitution, by either not holding these activities required for Advice and Consent, or to delay those actions past the term of the current President? Since the Constitution does not provide for this authority, shouldn’t the language of “shall” mean a deliberate and timely action?  Also note, the Senate Majority Party Leader is not a “Constitutional Officer”.  That is, it is not a position named in the Constitution with any Constitutional powers, it is a position of power created by the elected Senators for themselves.  How could it be Constitutional for such an unnamed official to assume powers not specifically granted by the Constitution?

·       What about the Senate rule defined by the members that any single Senator can hold up a nomination by the President for any reason and for an indefinite period? You may recall Senator Tuberville holding up the “Advice and Consent” process for several hundred nominations of senior military officers by the President for over a year.  Is that power, contained in a rule made by the Senators for themselves, consistent with the Constitution?

These are pretty good examples where the rules made by elected officials that lead to much conflict and divisiveness between the parties in Congress, may not even be Constitutional.  By following the Constitution, perhaps some or much of the divisiveness and dysfunction in Congress, caused by loyalty to party or major donors over loyalty to the Constitution, could be avoided.

Third, the Supreme Court majority has stated that their interpretation of the Constitution will follow the ideological principle of “originalism”. 

This means to me as a non-lawyer, that 240+ years after the Constitution was written, our current laws will be interpreted by the “original” intent of the Constitutional language as written 240 years ago, without regard to the changes in our society and our country over the past 2 ½ centuries.  This approach sees the Constitution as a “fixed in time” document, forever guiding the key laws and governing processes of our government and society without change.  This is in direct conflict with how one of the most prominent Founders, the author of the Declaration of Independence and our third President, saw the Constitution and its application to our laws and institutions.  Jefferson wrote in 1816 that “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

Which approach seems to make more sense?  Jefferson’s approach presumes that the Constitution will change, in both its specific language and in the interpretation of its language over time, as “new discoveries are made, truths disclosed, and manners and opinions change.”  I have not heard in any decision from the Supreme Court a discussion of the logical or historical thinking or writing upon which the principle of “originalism” is based.  I think many citizens would agree that the Supreme Court should instead provide “enlightened” interpretations of the Constitution in applying the Constitution to our laws, that reflect or at least consider “new discoveries, new truths” emerge and “manners and opinions change with circumstances” that the Founders could not possibly have seen or understood.

Let’s look at the example of the Dobbs decision that overturned Roe v Wade, on the basis that Roe v Wade was “incorrectly decided”. What this Supreme Court stated as an “incorrect” judgment was the presumption in the Roe v Wade decision that there was a right to privacy guaranteed to citizens in the Constitution.  Their evidence: neither the word “abortion” nor the word “privacy” exist in the Constitution, nor is a right to privacy explicitly stated in the Constitution, for example, in the Bill of Rights.  Under the principle of originalism, the Supreme Court majority simply decided that without a specific mention in the Constitution, there could be no right to privacy.

Beyond the inappropriate application of originalism in this ruling, the argument is inconsistent with many of the Court’s majority other decisions.  For example, the Supreme Court majority has found the existence of a right to self defense in the Second Amendment, despite the fact that those words do not appear anywhere in the Second Amendment. That inconsistent reasoning leads many citizens to question whether the Supreme Court is rendering judgments without bias, based on sound principles the public can understand.  In fact, it leads to the concern that the judgments are influenced by partisan or ideological biases of the Justices.

In addition, the argument in the Dobbs decision seems to ignore very direct language in the 9th Amendment, one of the Bill of Rights.  Here’s the specific language in that Amendment:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

Here a plain language reading seems to say clearly that there are rights “retained by the people” which are not enumerated, that is, listed explicitly, in the Constitution.  And further, that the listing of some rights in the Constitution, and not others, shall not be used to deny the existence of other rights retained by the people.  If that seems obvious, then we need for the Justices to interpret without partisan or ideological bias, which are those rights retained by the people.

I would suggest that the right of citizens to “privacy” is a right that is not separable from the right to personal liberty.  I cannot see how citizens have liberty if they do not have a right to privacy in their personal lives, and the government can pass laws that interfere with their choices in their private lives. 

I believe you could also make the point that a right to privacy in our homes is the underlying support for the rights specified in the 3rd  and 4th Amendments.  The 3rd Amendment prevents the government from quartering military personnel in our homes without their permission, as happened under the British government.  The 4th Amendment prevents unlawful search and seizure of people, or of our homes, papers and effects, without the approval of a court-issued search warrant.  Doesn’t it seem likely that these presuppose a right to privacy in our homes, our persons and our effects?  Might that mean that in the 21st century, as new truths revealed and human minds develop, as Jefferson wrote, this right to privacy would extend to areas such as medical care procedures advised by medical experts to protect our life and health, without the pre-approval or post-judgement interference of non-medically trained legislators?  Might a right to privacy also mean that the right to choose our life partners, even if between different races or gay individuals, is protected under the 9th Amendment as a “right retained by the people”?

Our challenge, should this presentation make sense and seem more appropriate and less biased by personal ideology or religious beliefs than how the current Supreme Court seems to be interpreting the Constitution, is how do “We the People” act to change the direction of this Court?  My non-lawyer, but practical conclusion is, we need to advocate for Constitutional Amendments that simply clarify what “We the People” believe the language of the Constitution should mean in these areas. Specifically:

·       That Article 2 Section 2 requires that a Presidential nomination receive the Senate’s “Advice” by holding hearings and interviews of candidates nominated by the President, and that the full Senate hold an up or down vote to provide or withhold “Consent of the Senate”, within 60 session days of the nomination, or the nomination would be considered to be approved for appointment to the position.

·       That under the 9th Amendment, one of the specific rights retained by the people without enumeration is the right to privacy in our personal lives, including our health care decisions made with our family with the advice of a qualified medical official; our choice of a life or marriage partner under civil law, leaving the right of religions and churches to decide who they accept in a religious marriage ceremony or sacrament; and our right to non-discrimination under civil laws and to protection against discrimination in society based on sexual orientation.

These are 2 of the changes proposed in my book, “American Turning Point: Repairing and Restoring Our Constitutional Republic.” A summary of all changes is provided on the book’s website at www.citizenrules.org.  If you agree with these observations and suggested actions, please agree to join in an effort to effect these changes by sending your email to author@citizenrules.org.  It won’t be quick or easy, but if enough people agree, we can determine how “we the people” prefer to be governed.