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Yes, (West) Virginia. The Constitution Applies to You.

April 17, 2009

Any day now, the Supreme Court could hand down its ruling in Caperton v. A.T. Massey Coal, a case asking whether whether the 14th Amendment’s Due Process Clause required West Virginia Supreme Court Justice Brent Benjamin to recuse himself from hearing a case involving a litigant who had made substantial contributions to his state election campaign. As we’ve noted, Caperton, which has facts so extreme they form the plotline for a John Grisham novel, has triggered widespread debate over whether states should do away with judicial elections all together, and, more broadly, the extent to which the federal government can or should interfere with state justice systems.

These questions were raised recently in an LA Times op-ed by David Rivkin, who argues that the Supreme Court should keep out of the business of judging state judges because applying the Constitution’s protections to a state judge would “run counter to our federalist tradition.” This tradition, according to Rivkin, “recognized and even cherishes the existence of states as distinct and separate sovereigns, supreme in their sphere.”

This is ridiculous. While the “tradition” to which Rivkin refers may accurately describe the state of our nation before the Civil War, it (fortunately) does not describe the present.

Rivkin ignores the fact that

after the Civil War, We the People revolutionized our "federalist tradition," by amending our Constitution to ensure that states provide all persons "due process of law." The text and history of the Fourteenth Amendment reveal that its framers sought to protect individuals against infringement of their rights by state governments, not just by the federal government. In the 1880 case Ex Parte Virginia, which upheld the federal prosecution of a state judge who refused to seat black jurors, the Supreme Court made clear that the protection of due process applies in state courtrooms.

Rivkin and others (including some amici in support of Massey) are thus wrong to suggest the Supreme Court violates the principles of federalism by intervening in Caperton. To the contrary, it is the Court’s duty to interpret and uphold the Constitution – including all 200 years of amendments –and ensure that Americans’ due process rights are not violated in state courts.

The Court should rule in favor of Caperton and order the West Virginia Supreme Court to rehear the appeal without Justice Benjamin, thereby recognizing that “pay-to-play justice” violates the Constitution’s guarantee of due process.