Constitution and High Court history discussed

Former law professor and Secretary of State Kris Kobach visited Iola Saturday to discuss the Constitution, and how it has impacted Supreme Court rulings for generations. Kobach was in Iola for a campaign stop and to offer a "Constitution 101" class.


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June 15, 2020 - 10:09 AM

Before his 2010 election as Kansas secretary of state, Kris Kobach taught constitutional law at the University of Missouri at Kansas City. Now a candidate for U.S. Senate, Kobach was in town Saturday to discuss “Constitution 101” to a handful of Iolans. Photo by Richard Luken / Iola Register

There’s a reason presidential politics, at some point, turn to the Supreme Court.

Former Secretary of State Kris Kobach, now running for a U.S. Senate seat, spoke about the High Court, the Constitution and a number of other factors at a “Constitution 101” session Saturday in Iola. He presented his summation to a group of fewer than 10 at Bolling’s Eatery and Meatery.

Kobach has recently resumed campaigning after nearly three months of relative inactivity, courtesy of the COVID-19 pandemic. 

Kobach’s hour long presentation dealt with three elements of the Constitution — its General Principles, its commerce and establishment clauses and the Second Amendment — and how each has shaped court rulings and subsequent legislation for generations.

The general principle of the Constitution, as written by James Madison, was for a limited federal government, designed so that the bulk of regulations be controlled at the state level.

The federal government’s power was focused more on such things as international trade, establishment of a post office and borrowing money on credit, Kobach noted.

And for the better part of 150 years hence, that was the norm.

As late as the 1920s, most governmental regulations affecting day-to-day life came from the states, he continued.

That changed in the Great Depression, when President Franklin D. Roosevelt enacted a slew of “New Deal” social initiatives geared to bolster the economy. But much of that legislation was being stricken down by the Supreme Court.

Roosevelt floated the idea of changing the Court’s makeup, adding as many as six new justices. It was dubbed “court packing,” Kobach noted.

The idea never gained traction, but was enough to force some justices to switch their votes more in line with the president’s agenda. Suddenly, Roosevelt’s legislation was being approved, and confirmed.

The episode led to the term “a switch in time saves nine,” Kobach noted.

 It took 60 years, to the mid 1990s, for the court to essentially strike down any kind of subsequent federal legislation affecting commerce, when they ruled a student could not be punished for violating commerce laws by bringing an unloaded gun to school, for the purposes of selling it to another student. 

The vote, Kobach noted, was 5-4.

Fast forward to 2013, when justices offered a split ruling on the Affordable Care Act — Obamacare — striking down the part of the law mandating citizens buy health insurance, but leaving the mechanics in place because it could be considered a tax. 

Both of those rulings also were decided by 5-4 votes.

Now, with the 2017 tax legislation signed into law, which essentially takes away ACA’s taxing authority, Kobach predicts the Supreme Court ultimately will either strike down Obamacare, as a whole or in part.

Meanwhile, the Constitution’s Establishment Clause — Congress shall make no law respecting an establishment of religion — followed much the same path.

For decades, the Court ruled against public displays “of anything that encourages religion,” Kobach said, until 2005.

Then, the Court ruled on a pair of cases, one that blocked the display of the 10 Commandments in front of a courthouse, but allowing a similar display as part of a monument near the Texas Statehouse grounds.

Second Amendment rulings followed another similar pattern.

For the better part of 150 years, there was no gun control legislation, until 1939, when the Court ruled a pair of defendants could be punished by transporting a sawed-off shotgun across state lines.

The next significant High Court ruling on gun legislation came in 2008, when the justices struck down the Washington, D.C., gun ban.

 In all of the cases, the Supreme Court had gone for years without blocking federal intervention, Kobach noted, “but now it’s swinging back the other way.”

Oh, and all were decided by 5-4 votes, bringing Kobach to the moral of his story.

With notable justices Clarence Thomas, Breyer and Ruth Bader Ginsberg nearing 80 or older, the next president could be tasked with appointing multiple replacements.

“There’s a reason the Supreme Court is such a big factor in presidential elections,” Kobach said.

And no, Ginsberg is not immortal, Kobach responded in jest, to a question from audience member Larry Walden. “I imagine she’s waiting until after the election” to decide on when to retire, Kobach said.

IN RESPONSE to questions from the audience, Kobach said President Trump likely does not have the authority to disband the post office, in light of the president’s threats to defund the U.S. Postal Service unless they raise bulk delivery rates for companies such as Amazon.

Kobach said while Kansas has effectively allowed mail-in ballots for elections, which he supports, he is against mandatory mail-in ballot elections, such as what’s done in Colorado, Oregon and Hawaii.

KOBACH ALSO spoke briefly on this year’s truncated campaign season.

Saturday’s activities included a debate in Wichita, his Iola visit and an evening closed-door event with campaign supporters, the second such weekend Kobach has been out in the public since the start of the pandemic in early March.

“I had a pretty packed schedule for March and April, and everything really got wiped off,” he said.

He participated in a handful of social media events and Zoom meetings, “but really there wasn’t much going on.”

In a typical election season, Kobach estimated he could attend weekends with two or three parades. 

“I haven’t been to a single parade this year,” he noted. And he’s uncertain there will be any before the Aug. 4 primary election.

“We’re still planned out, all the way through the primary,” he said. “We’re just now getting back to normal.”

Republicans will choose their nominee Aug. 4 to replace the retiring Sen. Pat Roberts. Other key candidates are Bob Hamilton, David Lindstrom and Roger Marshall.

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