Trump, the Supreme Court, Bizarre Politics

The man from Bizarre, John Randolph of Roanoke, Virginia, presided over the House of Representatives and later the U.S. Senate in the early years of the 19th century.  Bizarre was actually the name of his plantation.


Today the man from Bizarre is, of course, another oddity. 


Randolph railed against the idea of the Supreme Court as a political institution which could thwart the will of the people. Kelly Ayotte, defending lifetime terms for Supreme Court justices gave the usual justification: We want a part of the government which would not be influenced by the passions of the moment and which would insure the law was interpreted by dispassionate umpires calling the balls and strikes as the Constitution prescribes.


But Randolph was far more honest than Ayotte: he knew that the Supreme Court was actually the instrument of the politician (namely the President) who appointed its members. He thought having more than 5 justices was an unjustified expense. He knew that, eventually, the court would not simply call balls and strikes but would define what the strike zone should be and he was prescient.


When it came to "separate but equal" schools, the court said there was no such thing. When it came to whether Dred Scott could sue for his freedom, from emancipation from slavery, the court held he was not a person, but a slave and had no standing to present his case to the court. When it came to Roe v Wade, the court found a right to privacy although the word appears nowhere in the Constitution. When it came to Citizens United, the court expanded the notion of who is a human being to corporations. With every momentous decision, the court made up its own strike zone, according to the politics (some would call it the "philosophy" )of its members and it became the most political of all the branches in that its members could exert their powers without fear of removal or of being irrelevant.


Randolph was right about the potential power of the Court.

He was also infuriated by the Second Amendment, not because he thought gun ownership should be restricted but because he thought if the militia owned guns it would mean private citizens would not feel the need to own guns and defend themselves personally from government and personal attacks. So he was far ahead of today's NRA arguing that everyone should own a gun and defend himself and his family with it. Of course, he could plainly see what today's Second Amendment did and did not say: The 2nd Amendment says people belonging to a militia (i.e. the Armed Forces, in 18th century speak) can keep and bear arms but it does not give that right to individual citizens (as Randolph believed it should have.) 


Of course, Antonin Scalia, having exclusive knowledge  of the minds of the founders saw what Randolph, who knew and lived among these founders did not, because Scalia was an Originalist and he just knew.


We are about to return to a mindset with which Randolph would be very happy:  everyone packs a gun and defends himself or herself, and the Court will be essentially, an elected body, where those who vote for Mr. Trump get the Court they voted for.

Heaven Help us.