When the founding fathers amended the Constitution to add the Bill of Rights I’m absolutely certain that they didn’t intend those enumerated rights be subject to a popular vote. To the contrary; they wanted to make certain that each of those rights were above politics.
Can you imagine then the United States Supreme Court deciding a case allowing the people of a state to vote on the question of whether citizens have the right to free speech, or for that matter, any other federal constitutional right such as equal protection under the law?
Shall we enforce federal constitutional rights in our state? Vote yes or no.
Surely the Supreme Court would never allow that, right?
It’s unimaginable, right?
The Court did the unimaginable just this week in the case of Schutte v. Bamn, upholding the State of Michigan’s popular vote to ban affirmative action style racial preferences for admission to state universities. Essentially the Court held that a state has the authority to put federal constitutional rights, in that case the 14th Amendment, to a popular vote.
Now don’t get me wrong. I’m quite certain that all affirmative action racial preferences schemes are unconstitutional violations of the Fifth and Fourteenth Amendments anyway and should therefore be banned everywhere.
What the Supreme Court should have done long ago is simply declare all affirmative action schemes unconstitutional. But they didn’t do what they should have done. They’re a group of nine cowards. They made the situation worse by deciding that some constitutional rights are subject to politics.
"There is no authority in the federal constitution or in the [courts'] precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions," wrote Justice Kennedy for the 6 to 2 majority. "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it."
If states can vote on whether or not to adopt affirmative action schemes, (laws which clearly violate the 14th Amendment Equal Protection Clause), then they might also be allowed someday to vote on whether or not to enforce other federal constitutional rights such as freedom of speech, due process of law or the right to a jury trial.
The two dissenting Justices, Ginsburg and Sotomayor, not only disagreed with allowing states to vote on whether to adopt racial preferences schemes, but maintained that racial preferences schemes are mandated by the 14th Amendment. In short, they believe that banning racial preferences violates the equal protection rights of minorities.
They actually believe that equal protection of the law means that whites and Asians, for example, should be denied equal protection of the law when it comes to who should be admitted to a state university.
If, for instance, a black student possesses inferior academic qualifications, i.e. lower high school grades than a white student, he should never-the-less have a preference over the white student solely because of his race, and that preference is his constitutional right under the 14th Amendment.
So Ginsburg and Sotomayor would turn the 14th Amendment upside down and inside out, while the rest of the Justices would merely subject equal protection to the popular vote.
Constitutional rights: vote yes or no.