The first distinction between Progressives and Constitutional Originalists is their polar opposite emphasis on process. Progressive couldn’t care less for constitutional process. Oh, they’ll utilize constitutional processes if they can arrive at the desired progressive conclusion, but it ultimately doesn’t matter whether they arrive at social justice via popular referendum, statute, administrative regulation, or judicial decisions.
Constitutional Originalists cherish proper processes, and the most important process in the American republic is lawmaking, and limited lawmaking, by Congress. To paraphrase Edmund Burke, Originalists sniff out tyranny with every regulation or court decision, regardless of its perceived social justice benefit, which has the effect of establishing enforceable law.
Social justice is ill-defined and therefore impossible to achieve. Yet, it is for what Progressives continuously strive. The history of so-called “voting rights” is but one train of progressive abuses of the 14th Amendment that have horribly damaged the American republic.
In recent decades, Progressive so corrupted the 14th Amendment that little cannot be justified under its privileges or immunities, due process, or equal protection clauses. Under the guise of equal protection, scotus waded into and overturned decisions going back to Luther v. Borden (1849) that left the matter of congressional districts and their populations where they belong, with the states. Simply put, malapportionment of legislative districts is not justiciable.
Nothing in our history from colonial times to the mid-1860s Constitutionally justified One Man One Vote in the early 1960s court decisions. One Man One Vote is an illegitimate and destructive scotus-created right that pulled the matter of state and congressional legislative districts from the political and self-governing responsibility of republican states in Article I § 4, Article IV § 4, and lodged it in unrepublican Article III.
In Colgrove v. Green (1946), Justice Felix Frankfurter wrote for the 4-3 plurality that the federal judiciary had no power to interfere with apportionment of state legislatures. The Court held that Article I § IV of the U.S. Constitution left to the legislature of each state the authority to establish the time, place, and manner of holding elections for representatives, and that only Congress could decide whether individual state legislatures had fulfilled their responsibility to secure fair representation for citizens.
The court decided that this was a nonjusticiable question: “The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.”
Baker v. Carr (1962) was a landmark scotus case that decided that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide redistricting cases. The defendants unsuccessfully argued that redistricting of legislative districts was a “political question”, and hence not a question that may be resolved by federal courts.
Tennessee had not adjusted district lines since 1901. By the 1950s, some rural districts had one tenth the population of growing urban districts. Nonetheless, TN argued that the composition of legislative districts was a political question, not a judicial one, as had been held by Colegrove v. Green, in which Justice Frankfurter warned that “Courts ought not to enter this political thicket.” Frankfurter believed that relief for legislative malapportionment had to be won through the political process.
Frankfurter, joined by Justice John Marshall Harlan II, dissented in Baker, arguing that the Court had cast aside history and judicial restraint, and violated the separation of powers between legislatures and Courts. He wrote: “Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful.” The court reversed a uniform train of cases going back to the 1840s. One of the cases, Colgrove v. Green, was only sixteen years in the past.
Progressives will kick stare decisis to the ground when it doesn’t advance social justice.
At the core of Frankfurter’s vigorous dissent is the dangerous precedent of casting difficult political questions to a panel of unelected lawyers. If the people in the distribution of powers under the Constitution should ever think of making judges supreme arbiters in political controversies, the scotus will soon evolve into the worst sort of oligarchy imaginable, one that is secure in its place by Constitutional processes. An unlimited government of the few put in place by rioting mobs isn’t secure; the populace knows that change in their rulers is just another riot away. In the US, Frankfurter explained, since judges assume office through regular constitutional processes, the emerging oligarchy is sheltered and protected by the patina of legitimacy.
Allow scotus jurisdiction over political questions, and the people will soon dethrone themselves, lose their invaluable birthright, and spawn a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous than the worst elective oligarchy in the worst of times anywhere.
To illustrate Frankfurter’s fears from sixty years ago, the people of my state, Florida, foolishly ratified a state constitutional amendment in 2010 that, for practical purposes, pulled the duty of electoral district design from the state legislature and gave it to a reliably Progressive state supreme court.
Pity the slave born in chains; despise the once free citizen who casually dons them.