The Fundamental Principle of Popular Sovereignty…Good for One Day Only
At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.
As I said then, “both positions were consistent with past decisions”:
All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk. Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.
This term brings a similar example, although this time it involves a smaller number of justices.
On Tuesday I discussed the Court’s decision in the Shelby case, striking down Section 4 of the Voting Rights Act, as a violation of the principle of equal state sovereignty. As a number of others have noted, this idea that treating states differently poses a constitutional problem is a new one.
That majority included Justices Kennedy, Thomas and Alito. Kennedy, joined by these two justices, dissented in the Perry case, which dismissed the appeal of a ruling overturning Proposition 8 thereby allowing marriage equality in the state of California (again). The opinion accused the majority of betraying the idea of popular sovereignty.
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.
Kennedy’s ringing endorsement of popular sovereignty in Perry contrasts with his support for nonsense equal state sovereignty in Shelby. On the plus side, at least this time, he was right.