by Lowman S. Henry | July 05, 2022

Benjamin Franklin, it is said, emerged from the U.S. Constitutional convention and was questioned by a curious citizen as to what form of government the new nation would have? He replied “A Republic – if you can keep it.”

Well Ben, America is once again a constitutional republic.

The Supreme Court of the United States ended its term last month issuing a series of landmark rulings that signaled a retreat from the judicial activism of recent decades and a return to constitutional fidelity.

All of this jolted the American Left which had been accustomed to utilizing the high court as a vehicle to implement policy goals which they have been unable to achieve through the constitutionally proscribed legislative process.  As is typical when the Left doesn’t get its way street violence stoked by wild claims of impending Armageddon follow the rulings.

This betrays a fundamental lack of understanding of the proper – and constitutional – role of the Supreme Court.  The role of the court is, as the oath of office taken by the Justices makes explicit, to “support and defend the Constitution of the United States.”  The Constitution of the United States very clearly separates power among the three branches of the federal government and did so for the express purpose of not allowing one branch to become dominate over the others.

The legacy news media generally labels the current court majority that decided most of the significant decisions issued this past term as a “conservative” majority.  That would be incorrect.  The Justices form a clear constitutional majority.

Viewed through that lens the recent decisions are totally logical and consistent. Unenlightened commenters were puzzled that two of the rulings, the cases overturning Roe v Wade and that vacating a New York state gun control law, were seemingly contradictory in that one returned power to the states and the other curtailed state law.

There was, however, a fundamental difference between the two cases.  The New York gun law unconstitutionally restricted the ability of an individual to obtain a concealed carry permit.  The case involved an enumerated Second Amendment right. The high court merely applied that constitutional right to a state law and issued a ruling protecting the right.

In the Dobbs v Jackson ruling essentially overturning the errant and egregious Roe v Wade decision the court again followed the constitution.  Nowhere in the U.S. Constitution in the Bill of Rights or elsewhere is there an enumerated right to have an abortion.  The Justices instead upheld the 10th amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Thus the decisions were entirely consistent in protecting God-given Constitutional rights while reserving unto the states power not expressly given to the federal government.

Dobbs merely righted a wrong.  There is not now, nor has there ever been a constitutional right to have an abortion.  Further, the ruling does not outlaw abortion.  It rightly returned the issue to the states. This will trigger heated debate at the state level, but that is where the debate – and resultant laws – should occur.

The court further enflamed Left-wing passions by also reining in the power of the administrative state.  Congress has for decades been punting significant, but controversial, decisions to the executive branch allowing the deep state bureaucracy to issue regulations that carry the force of law.

In a ruling with wide ranging implications the court clamped a limit on the Environmental Protection Agency (EPA) saying that anytime an agency makes a broad-based and sweeping regulation that regulation is invalid unless specifically authorized by Congress.  In this case, the EPA sought to limit carbon emissions which supposedly contribute to climate change by regulating coal fired power plants out of business.

The court’s ruling will impact other federal agencies in that any systemic regulatory approach is now unconstitutional.  Any regulation that is fundamentally transitional to the economy must now be specifically approved by Congress. In making this ruling the high court once again restored constitutional balance by telling Congress to do its job and prohibiting the executive branch from exercising what are essentially legislative powers.

The recent term of the Supreme Court of the United States was indeed historic in that it signaled a curtailment of judicial activism and a return of court to its historic and constitutional role.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly American Radio Journal and American Radio Journal.  His e-mail address is [email protected].)

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