The Alternative Legal History of Greg Abbott's America

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On Friday, Texas Governor Greg Abbott put forward the "Texas Plan," a radical proposal to reshape the U.S. Constitution and shift power from the federal to state governments by calling what's known as an Article V Convention. Under the Constitution's Article V, a two-thirds super-majority of state legislatures can call a convention to amend the nation's founding document, subject to ratification by three-fourths of states. This is a high bar. Despite dozens of attempts to call such a convention, including recent pushes from both the left (to enshrine campaign finance restrictions eroded by the Supreme Court's Citizens United decision) and the right (to mandate a balanced federal budget), all 27 amendments have originated in Congress.

Nevertheless, Abbott is bullish that Texas will be able not only to get two-thirds of states to call a convention — a proposition that, with the GOP in control in 68 out of 98 state legislative chambers, isn't all that far-fetched — but to push through nine amendments aimed at chipping away at federal power. The amendment whose consequences are easiest to digest is one that would "require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law."

This amendment immediately calls to mind the controversy over Obergefell v. Hodges, last year's 5-4 decision tossing out a couple of dozen democratically enacted state laws banning same-sex marriage. But Obergefell is only the latest in a long list of cases in which the Supreme Court has overturned state and local laws restricting individual rights, often over the objections of three or four justices.  Here's what the country might look like if the super-majority proposal was in place a century ago:

Poll taxes: The Fourteenth Amendment to the Constitution, ratified in the wake of the Civil War, theoretically guaranteed that freed slaves enjoyed the same rights as any other U.S. citizen. In practice, it took a century and many, many Supreme Court decisions to dismantle Jim Crow and make "equal protection of the laws" anything more than an empty phrase to southern blacks. A lot of the landmark Civil Rights decisions (e.g., Brown v. Board of Education desegregating public schools, Loving v. Virginia overturning interracial marriage bans) were unanimous or close to it. Even so, progress toward racial equity would have been far more sluggish without Supreme Court decisions that lacked a super-majority. Take, for example, the 1966 case of Harper v. Virginia State Board of Elections. Virginia was one of a handful of southern states that held onto a poll tax for state elections even after the Twenty-fourth Amendment banned them in federal elections. In 1966, justices overturned Virginia's poll tax, but on a not-quite-super-majority vote of 6-3.

Segregation: A super-majority amendment might also have jeopardized a couple of other important decisions: Morgan v. Virginia, which in 1946 overturned that state's segregation of interstate buses; and Shelley v. Kraemer, which in 1948 prevented courts from enforcing racial covenants on real estate deeds. The former was decided 6-1, Chief Justice Harlan Stone having died shortly before the issuance of the opinion and another justice abstaining from the discussions. While six is more than two-thirds of the eight living members, it's ambiguous as to whether this would qualify as sufficient to overturn Virginia's democratically enacted law. The latter case was decided by six justices, with the three others abstaining. While the case ostensibly deals with private contracts rather than government, one could imagine the 1940s real estate lobby framing the issue as a matter of democracy, or else taking advantage of another amendment floated by Abbott allowing two-thirds of state legislatures to invalidate a Supreme Court decision.

Art & Literature:
The United States has always had a bit of a puritanical streak when it comes to matters of the flesh, which often manifests itself in laws against obscenity and lewd behavior. Starting a half century ago, the Supreme Court began chipping away at restrictive anti-obscenity laws on free-speech grounds. In 1957 the court, in Roth v. United States, opined that Congress could ban material "utterly without redeeming social importance" and whose "dominant theme taken as a whole appeals to the prurient interest." This led to a decision the following year in One, Inc. v. Oleson that literature couldn't be deemed obscene simply because of homosexual content. The Court further nibbled away at the definition of obscenity in 1964 with another 6-3 decision, Jacobellis v. Ohio; for his part, Justice Potter Stewart believed it applied only to "hardcore pornography," which could be discerned by the rigorous "I know it when I see it" test. The same day, also 6-3, the Supreme Court overturned a ban on Henry Miller's novel Tropic of Cancer. The court set a more enduring precedent in 1973 with a 6-3 decision in Miller v. California that overturned a man's conviction for distributing pornography and raised the bar for qualifying as obscenity to something close to its current height. 

The government also hasn't been above insinuating itself into people's bedrooms. The modern court has been pretty OK with letting married heterosexuals have at it — in 1965's Griswold v. Connecticut the Court decided 7-2 that contraception should be legal for married couples — though it has been less enthusiastic in its embrace of less heteronormative relationships.  In 1972 only six justices (i.e., one shy of a super-majority) voted to legalize contraception for unmarried women. And it wasn't until three decades later when the Court began to decriminalize homosexuality with a 6-3 vote to overturn Texas' sodomy ban.

Executing the Mentally Ill:
In its current iteration, the Supreme Court has shown little appetite for seriously rethinking the propriety of the death penalty as a punishment for the most serious crimes. In the past couple of decades, however, the Court has interpreted the Eighth Amendment's ban on "cruel and unusual" punishment to put modest limits on when the death penalty can be administered. The first came in 1986, with Ford v. Wainright, which prevented Florida from executing a convicted murderer who, while on death row, had begun referring to himself as Pope John Paul III and claimed, among other things, to have personally appointed nine justices to the state supreme court. The ruling required states to hold rigorous competency hearings to determine whether offenders are sane enough to be executed.

Executing Kids
In 1988's Thompson v. Oklahoma, the Court ruled 5-3 that it would be cruel and unusual to execute William Wayne Thompson for murdering his sister's husband when he was 15. In 2005's Roper v. Simmons, the Court raised the age of offenders eligible for execution to 18, ruling 5-4 that Missouri couldn't execute Christopher Simmons who, a dozen years earlier when he was 17, had murdered a woman and tossed her off a bridge.

Executing the Intellectually Disabled: In 2002's Atkins v. Virginia, the Court ruled 6-3 that executing the "mentally retarded" (Court's phrase) was unconstitutional on those grounds. The court held that the Eighth Amendment's "cruel and unusual" provision should be interpreted according to "evolving standards of decency that mark the progress of a maturing society." Abbot has singled out that language in the "Texas Plan" as a prime example of judicial overreach:

No member of the Court ever has explained what qualifies an unelected jurist to make such determinations, nor has any member of the Court explained why the inquiry is a legitimate one. The whole point of the rule of law is that we agree to the ground rules ahead of time, and then, in John Roberts’s words, the courts neutrally call balls and strikes. It runs contrary to the rule of law to allow unelected judges to change the rules as they go along and determine that, in their view, the “evolving standards of decency” require it. Lest there be any doubt that they are making it up on the fly, the Supreme Court sometimes determines that the “evolving standards of decency” renders a punishment unconstitutional when a majority of States prohibit it.

Free Speech
As seen in the cases involving obscenity and homosexuality, democracy doesn't always naturally embrace minority viewpoints or conduct. With some glaring exceptions (e.g., Dred Scott v. Sandford, declaring that blacks couldn't be citizens; Korematsu v. United States approving the internment of Japanese-Americans during World War II), the Supreme Court has stood as a check against majoritarianism. In Cohen v. California, for instance, which was delivered in 1971 in the midst of the Vietnam War, the Court ruled 5- 4 that 19-year-old Paul Robert Cohen's "Fuck the Draft" jacket didn't count as "fighting word[s]" and thus was protected by the First Amendment. It issued a similar 5-4 ruling in Texas v. Johnson in which the Court overturned the "desecration of venerated objects" conviction of a protester at the 1984 Republican National Convention in Dallas for burning an American flag outside of Dallas City Hall.

The Court has acted as a similar buffer on school prayer. In Engel v. Vitale, it ruled 6-1 that a prayer written by the New York state board of regents which was used to open the day at the state's public schools — "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen." — amounted to unconstitutional establishment of religion. More recently, after the families of Mormon and Catholic students sued the Santa Fe Independent School District in Texas, it ruled 6-3 that student-led prayers over the PA system at football games also violated the Establishment Clause.

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