In the last few days the Supreme Court has legalized bribery, (so long as the bribe is paid afterthe public official does the dirty work, and made it virtually impossible for administrative agencies to enforce the laws they are supposed to enforce. As to the bribery decision, how can you blame them, since they had to legalize the precise types of bribes they themselves are taking. Tomorrow we may learn how they pronounce Donald Trump immune from prosecution while assuring us that Democrats will not enjoy the same immunity. All this, or most of it, is being justified by a perverted reading of history. First, pronounce that whatever the founders intended and understood to be constitutional is constitutional, then make up history to support your contention that you know precisely what the founders must have thought, and who really cares that conditions change, something that many of the founders understood to be the case.
The objective, or course, is to make all right wing fever dreams come true.
It occurred to me that there is a way for them to do that quite effectively, and I wonder if this is coming.
Few non-lawyers (we all had to take constitutional law) are likely aware that there was a time when the Bill of Rights did not restrict the states but restricted only the federal government. The federal government, for instance, could not prescribe a state religion, but individual states could do so. If my memory serves me right, the state of Connecticut had a state religion until some around 1830.
All that changed after the Civil War, as a result of the enactment of the 14th Amendment. The Supreme Court ruled, one by one, that provisions of the Bill of Rights were “incorporated” into the Fourteenth Amendment, largely as a result of the due process clause in said Amendment. Some of these cases are now over a hundred years old. But ancient and respected precedent means nothing to this court, and it would be so convenient to overrule those cases, so the red states could force religion on their people (after all it’s what Sam Alito wants), regulate their speech so only right wingers can talk, and police their behaviors in other ways that are plainly unconstitutional under the Bill of Rights. The provisions of the Bill or Rights were incorporated on a case by case basis. The court could easily overrule the cases with which it disagrees, which is pretty much all of them, since why should Americans have the right to free speech, freedom of (and from) religion, etc.
The only problem the court might have is figuring out a way to decide that while none of the other rights are incorporated into the Fourteenth Amendment, those allegedly secured in the Second Amendment are incorporated. Incorporation of the Second Amendment is, arguably, the least justifiable of the incorporation cases, given that pesky “well regulated militia” language the court has always seen fit to ignore. But they can do it! Any court that can compare a $13,000.00 payoff to tipping a mail carrier can find a reason why being able to carry a machine gun is a more sacred right than being able to choose your own religion or choose not to have one foisted on you at all.
AFTERWORD: It occurs to me that I shouldn’t be giving them any ideas, but no right wingers read this blog, so far as I know, so I figure it’s okay.