MOVING TO FRONT FROM JUNE 25, SINCE BOTH BITS OF MISCHIEF HAVE COME TO PASS--ON THE ROAD, RIGHT NOW, SO DON'T HAVE TIME TO WRITE MORE
Very soon, the super-legislature of the United States is likely to decide that there is no constitutional right to abortion, and may also loosen existing gun regulations even further. When an earlier super-legislature, the Warren Court of the 1950s and 1960s, made decisions, they mostly made life better in the benighted states of America--and they were also more in sync with prevailing political opinion. The current incarnation of the super-legislature, dominated as it is by religious reactionaries, is poised to make life much worse.
All of this results, in the U.S., from the doctrine of "judicial supremacy" in matters of constitutional law: the Supreme Court gets to say what the Constitution means, and all other political branches must defer. (This has no basis in the Constitution, it is purely a matter of convention.) This is certainly one model, but it is not the only one: in the UK, Parliament is supreme and the Supreme Court gets to advise Parliament that laws seem to be unconstitutional, but the Court can not strike them down.
Over the long haul, it is hard to know what is better qua institutional design. In the short term, it is clear that the supremacy of the super-legislature in the U.S. is an unfolding disaster. If, for example, the super-legislature purports to strike down New York's gun regulations, the Governor of New York, and the Mayor of New York City, should respond as Andrew Jackson did: "The Court has made it decision, now let it enforce it." Jackson later backtracked, and he was wrong on the moral merits of that case. But the political leaders of New York should state clearly: "The Supreme Court's understanding of the Second Amendment is a pure fiction, and it will endanger the lives of our citizens. They are entitled to their opinion, as we are to ours, about the Constitution."
People will, predictably, die if the super-legislature lets states outlaw abortion and prohibits states from regulating firearms in a civilized way. This has nothing to do with constitutional law, it has everything to do with the political system. The fact that the disgraceful moron John Eastman thought Trump might get an advantage at SCOTUS should be a warning: if an authoritarian wannabe's lawyer could even think that the super-legislature might vindicate his client's illegal seizure of power, then it's time to doubt that judicial supremacy is a friend of freedom or human well-being in America.
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