Jefferson Wins … and We’re Effed!

February 12, 2016

Reverent references to the Founding Fathers drive me nutso. Yes, they established a more perfect union, but they rarely agreed about anything. Disagreements are what what we ought to expect from bright, ambitious, contentious men, so when modern day references turn the Founding Fathers into a monolith, it should not go unnoticed.

How bad is it? Almost half-term Governor and full-time nitwit Sarah Palin said her favorite Founding Father is “all of them.” Morning Joe co-host Mika Brzezinski liked Abraham Lincoln (1809 – 1865) best. And these references are just silly. Certain Supreme Court justices believe in originalism, a principle which claims for itself the obligation and ability to determine what the words in the Constitution meant in 1787. (These modern-day justices, with limited law practice experience at most, must not have seen a situation a deal in which everyone thinks the contract means something different.)

Founding Father divisions are broad, but the big split was between John Adams and Alexander Hamilton. Adams and Hamilton wanted centralized power. Thomas Jefferson favored a limited federal government and a vesting of great power in the states. The division lives on, 225+ years later, and the balance moves back and forth, like a pendulum.

So why has Thomas Jefferson won? On Tuesday, February 9, the U.S. Supreme Court stayed the Clean Power Plan, adopted by the Environmental Protection Act in furtherance of limiting emissions from mainly coal-powered electric plants. (Lawrence Hurley and Valerie Volcovici have the details in U.S. Supreme Court Blocks Obama’s Clean Power Plan, written for Scientific American.)

The Court decision is unprecedented, in that there is no appellate court opinion. The Court had the power to enter a stay; however, the Court does not get involved this early in a case, and maybe never has before.

Judicial activism aside, the decision reflects the power of states and the industries and entities they support. Air moves, and it does not honor state lines. Nevertheless, almost 30 states, almost all of which have R governors, sued to stop the implementation of the regulations. They want to protect extraction industries and power plant owners. The common good be damned, for we have our industries, taxpayers, and donors to protect.

Alas, the system we got when the Founding Fathers were done—at least for now—gives states a veto power over actions which promote the general welfare. Coal will likely die as a viable energy source, what with cheap natural gas and the declining cost curve for renewables. But the decision on Tuesday shows clearly that the interests of the few can and do trump those of the many, even when the broader interests matter to the few.

I know that in the area of individual rights we have a long history of protecting minority rights, although it’s ironic that the majority in Tuesday’s decision—save Justice Anthony Kennedy in some instances—worries not very much about those rights. So, for my readers who may see hypocrisy spewing forth from my words, not so fast! In the area of individual rights, in the main, when rights are being protected no one else is being harmed. (And no, same sex marriages have no bearing on het-married couples.) Here, though, the interests of certain states and their business interests have trumped a way to maintain clean air and solve climate change.

Finally, here’s some real irony. Thomas Jefferson hated the federal courts. (An organization whose board I chaired wanted to host an event in a new federal courts building and have a Thomas Jefferson impersonator as the main act. I blew a gasket, given Jefferson and the courts. “He’s a Founding Father,” someone responded, “and he’ll draw people.” It got ugly then, and the event never happened!) Alas, it took the Court atop the branch of government Jefferson could not abide to save the bacon for the states.


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