By Chris Satullo
Applied for any letters of marque lately?
If you have, you’ll likely be disappointed because the U.S. Congress hasn’t issued any since 1815.
A letter of marque essentially designates someone a legalized pirate, authorized by the government to attack the ships and citizens of a nation with which the U.S. is at war.
The Framers were so concerned about letters of marque that they built rules for them into the Constitution, right there in Article 1, Section 8. Yes, the Constitution spends a whole clause on a practice that became a dead letter within 30 years.
By contrast, our founding document does not contemplate modern-day concerns such as political ads, Super PACs, Twitter trolls, Alex Jones, trigger-happy cops, private spacecraft, hedge funds, global mega-corporations, ecoterrorism, AK-47s, or sea level rise from climate change.
Of course, how could it? None of that existed in 1787, and not even the supplest minds present inside Independence Hall could have imagined such things.
The brilliant mind who did the most to summon this watershed charter into being, James Madison, understood that point well. Even he left Philadelphia feeling glum about the inadequacies of the cobbled-together compromise document he’d done so much to fashion. So says Joseph Ellis, one of our day’s most honored historians of the period. Ellis has written that Madison consoled himself with the thought: Oh, well, at least we included the power of amendment; we can fix its flaws as we go along.
Madison then kicked off the process of fixing the flawed original in a big way with the Bill of Rights.
So, yes, I’m claiming that even Madison would view originalism, the mode of constitutional interpretation that rules our Supreme Court today, as a silly fetish. Look to my handiwork for touchstone values, he would say, not a detailed instruction manual for solving the knotty problems of your own day.
But originalists like Supreme Court Justices Samuel Alito and Clarence Thomas like to pretend that, if a proposed answer to our quandaries can’t be found explicitly in the archaic, often muddy language of the Constitution, that answer is illegitimate. (Note also that they don’t seem to accord the 27 amendments to the document the same reverence they do the original.)
This fantasy suits them in two ways.
First, when the Framers – and for all their flaws, I do revere them – spoke of securing the blessings of liberty, they were thinking primarily about white men with property. Expanding the Constitution’s protections to women and immigrants and the descendants of slaves…well, that has been the halting work of the last 180 years or so. People like Alito disapprove of many aspects of that progress, so treating the original document as sacrosanct gives them a weighty weapon to roll back the clock to what they consider sounder times.
Second, in a similar but distinct vein, the silence of the Constitution about so many modern problems enables originalists to project their rather pungent prejudices into the blanks between the inked, archaic letters, then to claim that their retrograde notions are “what the Framers intended.”
This alchemy could happen again soon, in a nationally significant case heard this week before the court. If the high court decides the case of Moore v. Harper the way Alito, Thomas and Neil Gorsuch likely hanker to, then our hopes for free and fair elections – where our votes count the way they should – would fall under even more dire threat.
Moore concerns yet another attempt by Republicans in the North Carolina legislature to gerrymander the Tar Heel State’s congressional map to a fare-thee-well. This happened in the last redistricting after the 2020 Census. The state’s Supreme Court called foul, saying the map’s blatant partisan tilt violated the state constitution. The court imposed a fairer map, which produced a 7-7 split in the state’s delegation in the recent mid-terms, instead of the 10-4 GOP advantage built into the map. (A similar sequence of events happened in Pennsylvania in 2018.)
But to defend and restore their gerrymander, North Carolina Republicans decided to summon the Kraken: a legal theory called the Independent Legislature Doctrine.
The doctrine jumps off from the Election Clause of the U.S. Constitution, which says that a state’s “legislature” is empowered to set terms for its state’s elections for federal office. The high-octane version of the doctrine that the state GOP is wielding here claims that no other entity – not a state’s governor, nor its courts, nor its election administrator, nor even its own voters acting by initiative or referendum – can supersede or overrule the legislature’s decisions about elections.
Yes, it’s the same theory that, in even wackier, souped-up form, fueled the Clown Coup of 2020-21, led by the lawless firm of Eastman, Powell, Giuliani and Trump.
If the Supremes were to agree here with the Carolina GOP’s claims, it would invite open season for gerrymandering, voter suppression and even the overriding of election results in every state.
You can see the pathway that has the Tar Heel Republicans, and their peers in other states, salivating: Deploy dark money to win a legislative majority in a year ending in zero. The next year, gerrymander the heck out of your state so the other party would have scant hope of ever prying your hands from the rudder. Then ignore anything that a pesky governor, state court or voter referendum might say to oppose you as you set up state elections so that your team always starts out on third base.
Alito had the nerve to suggest that allowing state judges to second-guess legislatures might be a bad idea, because some of them are elected and thus, he opined, prone to bias. This is rich from a justice who gives speeches detailing his angry quarrel with the modern world and who clearly relishes obliterating precedent in opinions such as Dobbs.
Luckily, Chief Justice John Roberts – bless his conflicted heart – has qualms. Based on their questioning at Wednesday’s hearing, so might Brett Kavanaugh and Amy Coney Barrett. Roberts needs to come up with a middle ground position that can attract at least one of them to join him and the three liberal justices in fending off the Kraken.
Seeking to stake out such middle ground, Kavanaugh, God help us, raised the memory of Bush v. Gore, one of the worst, most partisan high court rulings of all time Still, the attorney for the Republicans fumbled around trying to address Kavanaugh’s point, with Barrett chiming in to say his answers didn’t convince her. Any port in a storm; whatever works here to forestall a disastrous majority opinion by Alito is OK by me.
Roberts, Kavanaugh and Barrett seem to sense that Justice Kagan, incisive as usual, was right to warn, “This is a proposal that gets rid of the normal checks and balances.”
Neal Katyal, that hyperkinetic MSNBC regular, put it even more colorfully as he represented the voters who challenged the North Carolina map: “The blast radius from [the plaintiffs’} theory would sow elections chaos.”
One irony is that a key precedent here is Rucho, a gerrymandering case involving Maryland and – whaddayaknow? – North Carolina stemming from the 2011 congressional maps. Roberts wrote that majority opinion, which was a festival of pretzel logic and faux political naivete. Its bottom line: Federal courts should just punt all gerrymandering cases back to state courts, which Roberts styled as the proper and perfectly capable venues for resolving such disputes. (Boy, did Kagan ever demolish Roberts’ reasoning about the need to punt in her fiery dissent back then.)
So, for Roberts to go where the appellants and his three retrograde colleagues want to go on the Independent Legislature Doctrine, he would have to say Never Mind to his own landmark opinion in Rucho.
It’s doubtful he’ll do that. Let’s hope – for the sake of our democracy, the meaning of our votes and whatever faint hope we have for less polarized legislatures in the future – that Roberts can coax Kavanaugh or Barrett – or both – over to his side in the case of Moore v. Harper.
Otherwise, I can hear Liam Neeson’s voice roaring, “Release the Kraken!”
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia