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Letters: Interpreting the Constitution, part 2

I stated in the first part of this opinion piece that Federalist Society justices on the Supreme Court of the United States (SCOTUS) cherry-pick Constitutional author James Madison’s views on interpreting the Constitution: They say they interpret the words as intended when written, while ignoring his commonsense additional statement that ambiguity in those words should be interpreted after debate as time goes by. They ignore changing times and public debate because it allows them to insert their own politically-biased meaning into OUR Constitution. It’s judicial activism.

A few examples: In Shelby County v Holder, they determined that, as a matter of public policy, enforcement of the Voting Rights Act that protected historically discriminated against people of color was no longer necessary because racism in America was no longer a significant problem, a revelation to people of color. The legal problem with that is Congress, not SCOTUS, has the constitutional authority to determine public policy.

In Ruchio v Common Cause, the conservative majority reversed course deciding that it had no public policy authority to decide most legal challenges to partisan gerrymandering that mostly favor red-state Republicans. It said that the issue should usually be decided by state legislatures which, of course, is where the problem starts. It’s the “legal” version of the fox guarding the hen house.

Madison wrote frequently about the great need for a separation between Church and State and yet the Federalist Society court conjures up religious rights for religious schools to use taxpayers’ money and corporate employers to not pay for employee contraceptives. It expands gun rights that courts have historically limited. In Citizens United, it reversed one hundred years of law in order to enable dark money expenditures in elections. The same dark money supports the Federalist Society.

Roe v Wade is now before the court. Regardless of whether it should have become law in 1973, it now clearly meets Madison’s standard for being well settled as a matter of law within public debate. But the Federalist Society justices were hired for the main purpose of dismantling the abortion law, weren’t they? We will soon see their true colors: red or red, white, and blue.

Republicans have stacked SCOTUS to create laws that Congress is too divided to pass. And it’s not just the hypocrisy spewed by the Federalist Society court when it creates new laws. Sometimes it says nothing. It uses a “rocket docket” and a “shadow docket” which are mechanisms to quickly advance certain cases with issues it wants to rule on. It then affirms or denies lower court judgments without its own written opinion. It’s a super legislature.

As a retired judge, I agree with recent comments from SCOTUS Associate Justice Sonia Sotomayor. She spoke during a Mississippi case filed specifically to ask the Federalist Society justices to overturn Roe v Wade. She asked,” Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

— Charles Wieland,



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