You could say that core principles of the Constitution, first and finally put to the test after 230 years, failed.
But that’s not fair, because the document did not fail. Its provisions are frequently broad – freedom of speech; freedom of the press; due process – and it is the sole and highest responsibility of the courts, including the Court, to interpret and apply those principles in the context of actual cases.
And it is the Court – this Court – that stands on the brink of interpreting the emoluments clauses of the Constitution (both of them!) as being null and void. This Court has utterly failed in its first and highest responsibility.
This Court has concocted its own convenient legal principles of standing that prevent anyone from seeing it enforced – including Congress, the primary and most relevant party to prosecute its enforcement against a criminal enterprise in the executive branch.
The obvious question for the Court is: If not this, when? – as in: If nobody has standing to sue for enforcement of either emoluments clause in this case, then under what imaginable circumstances might anyone ever have standing? Are these clauses just absolutely unenforceable, and thus meaningless?
But the (non-)answer from the Roberts Court on this crucial question seems both easily predictable and inevitable – in the infamous words of Scalia:
Get over it.
The Court – this Court, the Thomas Court, the Kavanaugh Court, the Court where 40% of sitting justices in the majority are credibly implicated in sexual harassment and sexual assault – abuses the Constitution the same way that evangelicals abuse by the Bible: by selectively reading certain parts, grafting their own agenda onto it, and ignoring anything that seems inconvenient. The Constitution is a hollowed-out husk, a costume that the Court wears when it suits its purpose, and otherwise ignores.
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