As they say, we are a country of laws. And Congress creates those laws, the President administers them, and the Supreme Court determines if the Constitution permits them. This puts the Court at the top – the other two branches decide what we as a country will do, but at any time, for any reason they deem appropriate, the Supreme Court can say “no”. Or the converse. The Supreme Court can take something that seems clearly improper and say “yes”.

And, as we know, our Supreme Court is a big disappointment, but we can’t really do anything about it, because we are a country of laws. And what the Supreme Court says – that is the law.

As we also know, the Supreme Court is run by a group of individuals who claim to be “originalists”, jurists who look to the Constitution not as a living document to be molded to meet the times, but as a more static document, and their goal is to find and use the “original meaning” of a constitutional provision to determine “yes” or “no” today.

Now, we know that they may be a bit hypocritical in employing this doctrine. They might use it when it suits their purpose, and not use it when it does not. But that’s for a different day.

For today, I want to talk a little about how “originalism” and “common sense” have so little in common. If you are a pure originalist, you pay no attention to common sense. You don’t care what the effect of your ruling might be. If your pure originalist analysis tells you that the answer to a question should be “yes”, you go with “yes”, even if you know that the repercussions might be terrible.

For example, if you believe that the Constitution leaves the question of abortions to the states, the fact that a previous Court has ruled differently is irrelevant, and the fact that you undoubtedly know that reversing that decision will create utter havoc is irrelevant. You can’t use your common sense; that is not your department. In fact, it is no one’s department.

This then goes to the question of states’ rights versus federal rights – an argument that has been going on since before the Constitution was written and which is evidenced by much that appears purposely unclear within the wording of the Constitution. Over the almost 250 years that this country has been in existence, the pendulum has swung in the favor of federal supremacy. But now, with the Dobbs case (the abortion case) being one example, it is going the other way, and individual states are being given more rights to determine how various matters will be handled within those states, without regard to the rest of the country. Of course, we are one country, with people living in one state and working in another, having a home in one state and perhaps a second home in another, and so forth. Having states decide policies such as reproductive rights on a state by state basis violates common sense. But the originalists don’t care.

(There are always exceptions – the most obvious being the Court’s ruling against Colorado which will require Colorado to allow Donald Trump’s name to be on its presidential ballot. The Court’s rationale here was not originalism, as much as it was common sense (they said). How can you run a national election and let each state do whatever it wants to do? Of course, states do do what they want to do in virtually all areas involving national elections. Except now in this one area. Why the exception? Could it simply be politics?)

Yesterday the Court, on a temporary basis it appears, said that Texas can implement it new states-rights immigration law. As I understand it, Texas state and local law enforcement officials can now arrest anyone they deem came into the state from Mexico illegally, hold them in prison pending trial, charge them with a misdemeanor (or if it’s a repeat violation, a felony) and fine or sentence them or return them to Mexico. What the standards will be for determining who to arrest, we don’t know. Whether Mexico will agree to take the immigrants back, is a big question; Mexico says it won’t take them. Whether or not an entrant will have the right to even claim asylum under federal law, we don’t know.

If Texas is allowed to continue enforcement of this new law, other states will follow and each law will be written and enforced differently. So, the rights of people entering the country will differ depending on where they enter. And we don’t have any real idea as to how this will relate to the rights of federal officials from HHS who, up until now, have enforced our border laws.

But we do see the precedent that is being created. States having their own immigration and reproductive rights laws will lead to more areas in which the states will declare that they have rights to replace federal laws with their own, or if not replace them, certainly to enforce their own laws alongside the federal officials who are enforcing the country’s own laws. A slippery slope indeed. And soon we will have a 21st century John Calhoun arguing that states have the right to nullify the enforcement of federal laws within their borders, and a Supreme Court who will take its originalist thinking and look at the compromise that we call our Constitution and see it from the eyes of those who believe that we are a nation where the states control, and only call on the feds when they want to.

As someone on TV says…..”stay tuned”. These are very important issues and you need to stay alert. That’s only common sense.