The reaction from Maryland’s top leaders to the three Supreme Court decisions handed down this past week revealed their stunning lack of appreciation for the foundational pillars of our constitutional order.
The public statements from Gov. Wes Moore, Attorney General Anthony Brown and Comptroller Brooke Lierman about these cases revealed to us that they have surrendered to illiberal, tribal politics. All three deliberately ignored the facts and substantive constitutional issues of the cases, and instead launched into liturgical sermons designed as a balm for their political congregations, wounded by the inability to impose their vision on the rest of the nation.
Getting it backward
Responding to the Supreme Court’s decision in the racial discrimination cases brought against Harvard University and the University of North Carolina, Gov. Wes Moore said “We have a society where the Constitution is supposed to be a living document that opens up opportunities,” Attacking the court further, Moore said, “but we are continually seeing from this court that they are using the Constitution to pull them back.”
Moore’s analysis is completely backward. The Constitution is not a living document. It is a framing document for the ideals embodied in the Declaration of Independence that we are endowed by our creator with certain inalienable rights. The Constitution and its amendments create the legal boundaries that the government cannot cross and infringe upon those rights.
The 14th Amendment unambiguously protects the right of citizens to equal protection under the law, and gives Congress the power to enforce it with “appropriate legislation.” A piece of appropriate legislation Congress passed to enforce the provisions of the 14th Amendment was the Civil Rights Act of 1964, specifically, Title VI, which states “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The evidence presented in the Harvard and North Carolina cases clearly show admissions officials at both schools engaging in egregious racial discrimination against Asian-Americans. A clear violation of the 14th Amendment’s equal protection clause and the letter of the law in Title VI.
The Constitution is a written down guarantee of the civil rights of individuals, not a “living document,” as Wes Moore believes it is, with provisions that can be ignored when they become inconvenient to the goals of a political or ideological program. Contra Moore, the Supreme Court did not use the Constitution to “pull back” opportunities, rather its ruling pulled the government and government funded institutions that racially discriminate back to the equal protection demands of the Constitution.
Moore’s statement on the 303 Creative case was as vapid as his statement on the Harvard and UNC discrimination cases were logically defective. Again, Moore eschewed the facts of the case for liturgical sermonizing. “Everyone should be able to live and love as who they are,” Moore said. “Our nation is strongest when we embrace one another and respect the equality of all people. Today’s Supreme Court decision cuts against that principle. In Maryland, we stand for dignity, freedom, and respect. Here, we choose to celebrate all identities and backgrounds…Nobody should have to justify their own humanity.”
No one’s humanity at stake
No one’s “humanity” was at stake in the 303 Creative case. The case centered on whether the State of Colorado could compel a website designer to engage in speech and expression that violated her deeply held beliefs. As Justice Gorsuch noted in his opinion, the crux of the matter before the Court was, “can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”
“The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy”, Gorsuch wrote. “In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” The First Amendment, Gorsuch continued, “protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided.”
The websites the plaintiff wanted to design are speech and expression (facts agreed to by the Tenth Circuit Court of Appeals that initially ruled against the plaintiff), and if she wants to speak, Colorado’s law forces her to choose between following her conscience and violating the law or following the law and violating her religious beliefs. “??That is enough, more than enough,” Gorscuh wrote to represent “an impermissible abridgment of the First Amendment’s right to speak freely.”
Writing in the opinion of another case involving compelled speech, West Virginia v Barnette, Justice Robert Jackson wrote “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” It appears Gov. Moore has trouble locating that fixed constellation in the night sky of our constitutional order.
Like Gov. Moore, Attorney General Anthony Brown shunned the substantive constitutional questions in favor of demonizing the court for not providing a ruling that reifies his political and policy preferences.
“Once again, the Supreme Court today rolled back protections and support for people who disproportionately face discrimination and other obstacles as they seek to pursue educational opportunities,” Anthony Brown said in a statement responding to the Court’s decision in Biden v Nebraska. Brown said the Court “has also made it more difficult for members of these same communities to get out from under the crushing burden of student loan debt that they shoulder in disproportionate numbers.”
In issuing the student loan forgiveness plan, Biden illegally assumed the authority to rewrite the statutes of the Higher Education Act of 1965, which govern student loans. Delivering the opinion of the Court, Chief Justice John Roberts, wrote, “In essence, the Secretary has drafted a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space with radically new text.”
Separation of powers
Here’s a quick refresher on the basic separation of powers for the Attorney General. The power to enact laws is not found in Article II of the Constitution defining the powers of and limitations on the Executive branch. The power to enact laws is found in Article I, which defines the role of Congress. It is astounding that the Attorney General of the State of Maryland couldn’t be bothered to address the fact that the President of the United States violated this foundational feature of our constitutional architecture.
Only Congress has the authority to authorize the forgiveness of student debt. President Biden had two years of Democratic majorities in both chambers of Congress in which to pass legislation authorizing student loan forgiveness. Instead, he chose the illegal method of executive action in order to activate a key segment of voters for the 2022 midterm elections.
Comptroller Brooke Lierman, a lawyer by training, had the following to say on Twitter.
“Even though we know how deeply political this Court is, every new decision is a gut punch and indeed a tragedy – of constitutional law and for our country. Truly terrible week of decisions that will hurt people, cause more division, and set our country back. Awful.”
Translated from Lierman’s patented brand of virtue speak into English, the comptroller is saying she wants the illiberal practice of racial discrimination in college admissions to continue, government compelled speech is good so long as it compels speech she agrees with, and respect for the rule of law is conditionally dependent upon furthering her preferred policy prescriptions.
Given this statement, it is a fair question to ask the comptroller, what is it about racial discrimination, government compelled speech, and illegal executive action she doesn’t like?
Constitutional order under assault
Equal protection under the law, free speech, and the rule of law are pillars of our constitutional order. They are the safeguards put in place to guard against the corruption of power and protect individual liberty and equality. It is small “l” liberalism in practice, and the Supreme Court’s decisions in these three cases upheld all of that.
Gov. Moore, Attorney General Brown, and Comptroller Lierman’s are the state of Maryland’s top constitutional officers. Their reaction to these cases reveal they care more about ends than means, that the rules should not apply when things don’t go their way. So what if an individual’s rights were violated or the rule of law subverted, it’s all good as long as their desired political objectives are achieved. This is profoundly illiberal and authoritarian.
This is also an unfortunate and troubling aspect of the current state of our politics. Our constitutional order is under assault. The institutional and procedural safeguards designed to defend individual liberty are consistently tossed aside and ignored by tribal partisans whose only goal is a will to power in order to impose their vision of society upon the other tribe.
Make no mistake, progressives like Moore, Brown and Lierman, are not the sole combatants in this attack. There is a converging authoritarianism on both the left and the right. Donald Trump, Dan Cox, Ron DeSantis, and the illiberal “national” or “common good” conservatism movement all abandon the liberal principles embodied in our constitutional order in favor of raw government power to enforce their preferred vision of society.
Progressives like Moore, Brown and Lierman rightly point out the authoritarianism of the right; it would benefit Marylanders, if they could recognize it in themselves.