Not long ago, along a country road in the Mohawk Valley, I saw what struck me as an odd sight: an Amish fellow driving a tractor. You know, the Amish are known for horse-and-buggy transportation, because of rules in their culture limiting technology that the elders fear could introduce what they consider foreign ideas. So, as I understand it, Amish people can’t drive a car, but they can hire somebody to drive them; and while many Amish communities permit technology powered by 12-volt batteries, none allow 120-volt electricity. 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. You know, Donald Trump’s appointees have led to some remarkable rulings – that states can’t regulate handguns, but can regulate women’s bodies; and that Congress isn’t allowed to delegate its authority to federal agencies — starting with regulation of power plant emissions — because, well, I guess because that wasn’t specifically authorized by our nation’s founders.
This is a result of what in constitutional law is known as “originalism.” -- which looks to the meaning of a law’s language when it was enacted to determine its original meaning. 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. The so-called Trump court apparently believes that the best approach is to try to turn back time – to restrict ourselves to simple solutions rooted in the 1700s to complex problems that imperil life in the 21st century. What could possibly go wrong? (1:43)
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 through 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.
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 hearing this commentary. But the pushback that began during the lifetimes of the Robber Barons 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. (2:49)
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 continued application of the Supreme Court’s current reasoning. For example, about two years ago, the court ruled 6 to 3 that Congress was wrong to delegate air emission reductions to the Environmental Protection Agency.
Of course, when it comes to decision-making, Congress is a mess. It can’t pass a budget, and right now it is holding up immigration reform because fixing the problems at our southern border might hurt the presidential campaign of Donald J. Trump.
So there is virtually no chance that Congress can take decisive action to limit the carbon emissions that fuel climate change. The justices’ disregard for the impact of their ruling is staggering in its arrogance. It is negligence.
And right now, originalism faces a direct challenge from Mr. Trump. His campaign is appealing a ruling from Colorado that barred him from the presidential ballot there because of a clause in the 14th amendment that bans federal office-holding by people who engaged in an insurrection against the United States. Historians and legal scholars say the original intent of the 14th amendment is clear – that it would, indeed, apply in this case. But do you imagine that the Trump-appointed justices will care about originalism if it would require blocking their patron from the ballot? (4:05)
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.
We may be frustrated by that, but if that’s how the ruling comes down – keeping Donald Trump, insurrectionist, on the ballots nationwide – there’s nothing we can do about it. It will likely come down to the ideological rigidity of six conservative justices — half of them put in place by a president who twice lost the popular vote, incidentally. And 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.
Rex Smith, the co-host of The Media Project on WAMC, is the former editor of the Times Union of Albany and The Record in Troy. His weekly digital report, The Upstate American, is published by Substack.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.