For most of America, September 17 was “Constitution Day.” For progressives, it was a day to launch a multi-pronged assault on the Constitution.
On September, 17, 1787, the delegates to the Philadelphia Convention signed their finished product, the Constitution, and released it to the states to consider for ratification. It would be a year before eleven states ratified the Constitution, passing it into law, and three years before all thirteen states ratified the Constitution. It would be four years before the states ratified ten of the first twelve proposed Amendments to the Constitution, creating the Bill of Rights. Regardless, it is the 17th of September that we commemorate as “Constitution Day.”
But not the progressive left. To the extent they spent any time at all referencing the Constitution this past week, it was to attack it. Call it “Un-Constitutional Day,” if you will. The most direct attack was an attack on originalism — the truism that the Constitution must be interpreted as closely as possible to its commonly understood meaning on the day it was signed in 1787. Next, the Left, through its house organ, the New York Times, launched an attack on due process, with Democratic candidates for President calling for Supreme Court Justice Kavanaugh’s head. And the last attack, without doubt the most dangerous in the near term, was a renewed call in the New York Times to pack the Supreme Court with progressive ideologues.
An Attack on Originalism.
At The Hill, a progressive lawyer, Kim Wehle, argues that “Justice Gorsuch is wrong — ‘originalist’ judges make stuff up too.” What is she talking about?
Supreme Court Justice Neil Gorsuch recently authored a book, the title of which, A Republic, if you can keep it, is from a famous Ben Franklin quote. At the end of the 1787 Constitutional Convention, Franklin, who was justly famous for his wit and brevity, was asked what type of government the men at the Convention had created. Franklin replied “A Republic, if you can keep it.”
What Franklin meant was that, in the words of Prof. Richard Beeman, “democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.” Not surprisingly, Gorsuch’s book deals with his judicial philosophy of originalism as the Foundation of our Republic and the threat that progressives’ “living Constitution” obscenity poses to our Republican form of government.
Two paragraphs from Wiki (citations and links omitted) do a good job of summing up the issue and presaging Gorsuch’s recent book:
In a 2016 speech at Case Western Reserve University, Gorsuch said that judges should strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”.
It’s not clear whether Kim Wehle deliberately or from lack of acumen fails to understand this principle. What is clear is that, on Constitution Day, she claimed that the living Constitution philosophy is no worse than Gorsuch’s originialism because originalist judges also “make stuff up” as they go along — just as, she fully admits, progressive judges do. That is a calumny. Writes Wehle:
Accordingly, Gorsuch reportedly tells his law clerks: “‘Rule No. 1: Don’t make stuff up,’” and “‘when people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.’”
Here’s the problem: The implicit suggestion that the law and the Constitution are black and white — and that all that honorable judges need to do is apply its plain language and move on — is a myth.
That is a horse manure statement of the issue. No one, not least of all an originalist, claims that the law is black and white. Teasing out the most likely meaning of a clause, a sentence, or a paragraph as the Founders drafted it and as the people who voted upon it understood it is not easy and, by the nature of the evidence relied upon, subject to a range of interpretations.
It helps the originalists that the Founders left us a fair number of clues about what they thought and intended. In addition to focusing on the words themselves, as those words were understood at the time and as were voted upon at the Convention and then as finalized by the Committee of Style, jurists can look to a few contemporaneous sources who describe the debates at the Constitutional Convention. They can also read what people wrote after the Convention but before ratification, such as the Federalist Papers and the Anti-Federalist Papers, which argue about the provisions and their meanings. There were debates in the state conventions. And lastly, there is the entire sum of historical events that were known to the Drafters and the people of the era and that we can assume had an impact on the way in which they drafted the Constitution, whether they mention these events or not.
The key to this “range of interpretations,” though, is that every one of them is anchored firmly in the history and soil of the American colonies in 1787. This history ensures that an originalist change has a limited range of permissible interpretations beyond which he may not go. Even within those parameters, the judge is further limited by the mandate that he choose which interpretation is most accurate, not which his conscience finds most desirable. That is not, as Ms. Wehle claims, “making stuff up.” And indeed, it often means that originalist judges will in good conscience disagree. As Ilya Shapiro recently opined at the USA Today, “Liberal Supreme Court justices vote in lockstep, not the conservative justices.”
The example Ms. Wehle uses to portray originalism’s alleged bankruptcy is bizarre, for it stands for the opposite proposition. Wehle focuses on Scalia’s opinion in a case almost two decades old. In that case, Scalia wrote that the Fourth Amendment requires that police show probable cause and obtain a warrant before using a thermal imaging device to observe a home for the excessive heat that home-grown marijuana generates. As Wehle points out, thermal imaging did not exist in 1787. Through that statement, she apparently thinks she’s proving that Scalia was of necessity “making stuff up.” Horse manure.
What the Supreme Court Justices are being paid to do is tease out the bedrock principles of the Founders and apply those to new situations, including new technology, which is precisely what Scalia did. The Fourth Amendment requires probable cause to search a private home. Whether they conduct that search physically, by breaking down a door, or without physical intrusion, using new technology, the core principal behind the 4th Amendment still applies. It is still a search requiring that police act with probable cause.
What Ms. Wehle is arguing for is policy-based jurisprudence with unelected, life-term Supreme Court Justices acting as a politburo, imposing their own policy choices as Constitutional law.. She wants judges to ” put their policy goals on the table for the rest of us to see and evaluate.” This is an outright assault on the Constitution. Justices on the Supreme Court have one power under the Constitution. Per Article III, Section I, they hold “the judicial power.” The power of imposing “policy goals” on this nation has nothing to do with the judicial power. Imposing policy goals is solely the province of the Congress which, under Article I, Section I of the Constitution has “all legislative power.” At least unless Ms. Wehle and other progressives win their slow motion coup to permanently bend the Judiciary, and with it the very Constitution, to their will.
The Attack On Due Process
The Democrats turned the Kavanaugh Hearings, the goal of which was to determine his fitness for the Supreme Court, into an utter travesty when, at the twelfth hour, they made public unfounded charges that Kavanaugh had engaged in sexual batteries in high school and college. It was, as to Kavanaugh, the same as the Russian collusion charges were to Trump — false allegations made at the last minute to forestall due process and to drum up a public outcry that would keep these two out of power or to weaken and delegitimize them so they could not fairly exercise power.
While due process of law is a foundation of our nation, its antecedents predate our Constitution by a millennium at least. The Magna Carta of 1215 famously makes references to due process, although even did not invent “due process” but, instead, acknowledged its pervasive existence at law in England and stated that King John could not suspend it. The words “due process” are shorthand for all of those systems and processes we have developed over a millennium — from probable cause to search and arrest to jury trials to appeals to actions of habeus corpus — to ensure that, whenever the state uses its police power, it will do so with reliable fairness.
Due process is an answer to the ancient question, quis custodiet ipsos custodes – “who watches the watcher?” Our Constitution answered that question in the political realm with checks and balances and in the legal realm with “due process.” The latter is our way of making sure that multiple people — and, to the maximum extent possible, these people should have no bias as to the particular case — have to examine facts to determine a person’s guilt before the state can take that person’s life, liberty or property.
Due process of law is so fundamental to a republican form of government that a republic cannot exist without it. If a government is free to exercise its power without the check of due process, then, by definition, you have a tyranny, even if it has not reached the tyrannical extremes of, say, North Korea. Our English forebears recognized a tyranny when they saw one and waded through a river of blood, in multiple rebellions and civil wars, from the First Baron’s War in 1215 to the Glorious Revolution of 1688, to ensconce the right to due process of law as one of their rights against government. Today, we call a government operating without due process of law a police state, a fascist state, a dictatorship, or a socialist utopia.
What the above means is that it should be a disqualifying event if someone seeking power in our government comes out in favor of punishment without due process of law. And yet here we are, during the weekend before Constitution Day 2019, with the NYT yet again raising unproven allegations against Brett Kavanaugh, hiding highly relevant information bearing on his innocence, and Democratic candidates for President reflexively calling for Kavanaugh to be removed from the bench.
Kavanaugh’s true crime is that he is an originalist, and the left does not need due process to establish that. As to actual crimes, no need for due process when false allegations and a howling mob will do the job of limiting Kavanaugh’s right to life, liberty and property. The Constitution be damned.
Packing the Court
If the Constitution limits the Supreme Court to exercising judicial power then — as was the case until the middle of the 20th century — then its makeup should not cause major controversy. As progressives seized power in America, that changed, because they understood that they could expand their legislative reach by shaping a judiciary that intruded in the legislative sphere and, even better, exercised without check the People’s Article V power to amend the Constitution. Thanks to progressive policies, the Supreme Court became, not the least dangerous branch of government, as forecast by Alexander Hamilton in the Federalist Papers No. 78, but the most dangerous branch, which progressives routinely used to circumvent and subvert the ballot box and the Constitution itself. This is why the Court’s composition went from non-controversial to the most important political question in America. The progressives even gave us a new verb for this activism — “borking,” which describes progressive politicians assassinating originalist judges. Notably, in this lead-up to Election 2020, when Joe Biden is still considered the Democrat favorite, it was Joe Biden and Ted Kennedy who originated borking when they killed Judge Robert Bork’s nomination.
For the last century, a left-leaning Supreme Court has systematically and methodically changed our nation’s fundamental nature. They have removed Christianity from the public square, found a hidden right to abortion, expanded the regulatory state, approved disparate impact theory, authorized gay marriage, and given us a whole host of other decisions that, in ways both large and small, have gone beyond jurisprudence and, instead, fashioned new laws and amended the Constitution — acts beyond the Court’s powers, both statutory and Constitutional. Indeed, for the past century, the Supreme Court has been the single most important tool that progressives have wielded. In part, that was because Democrats regularly appointed hard left progressives to the bench whenever the opportunity arose. In part it was because, all too often, Republican-appointed jurists often took a hard left turn once on the bench.
Regarding that last point about Republican-appointed judges, there’s even a name for it: the Greenhouse effect. Thomas Sowell posited this effect have noting the way in which squishy conservative jurists, all of whom came from a social milieu in which the New York Times was tantamount to the word of God, seemed to shape their opinions to please Linda Greenhouse, the NYT reporter assigned to the Supreme Court beat.
Thankfully, Republicans have finally learned that appointing any ostensible “conservative” to the bench, if that person lacks solid originalist credentials (e.g., John Paul Stevens or Anthony “Gay Rights” Kennedy), will almost certainly lead to disaster. These people people inevitably begin to use their power to ensconce the New York Times‘ preferred policies rather than to interpret the Constitution. No one knows that better than conservatives in 2019.
Through the Supreme Court’s century-long shift to hard Left activism, conservatives kept playing by the rules. Now, though, the real possibility exists that five originalists may end up on the Supreme Court. This means that the Court will interpret the Constitution as written, ending the era of progressive “judicial legislation.” Rather than copying conservatives, who meekly acquiesced to the bastardization of the Constitution, progressives, faced with a return to Constitutional values, have announced that we need to change those rules.
More than a few progressives have floated a plan to pack the Supreme Court with progressive judges if the Supreme Court ever becomes staffed with five originalists. This is a raw play for permanent political ascendancy. The latest on Constitution Day came from professional race hustler and New York Times opinion columnist (but I repeat myself) Jamelle Bouie, who writes “Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court.”
Kevin Williamson responds at NRO:
Bouie is a habitually sloppy thinker and writer, and here falls into two of the most common modes of partisan hackery. The first is the argument that his party must “play hardball” . . . lest the bad guys on the other team write their partisan “ideological preferences into the constitutional order.” . . . Bouie here is engaged in the New York Times version of shrieking “But they started it!” as a justification for playground misbehavior. Republicans don’t think they started it — not where judges are concerned, anyway. They think Joe Biden and Ted Kennedy started it in October 1987 with the smearing of Robert Bork, which permanently changed the character of Supreme Court confirmation hearings.
Bouie foreswears an intention of trying to “make the courts a vehicle for progressive policy,” and, of course, he does this as he writes of the ways and reasons for making the courts a vehicle for progressive policy. And here is the second common mode of partisan hackery: The belief that one’s own ideological preferences are not ideological preferences at all but self-evident moral truths. This belief can be held either insincerely (and cynically) or sincerely (and stupidly). For Bouie, it seems to be a bit of both.
The point of packing the courts, he writes, is “to make sure elected majorities can govern,” and he cites Supreme Court checks on the grander ambitions of Franklin Roosevelt and Progressive Era as examples of the Court frustrating the those “elected majorities.” He goes on to celebrate Roosevelt’s bullying the Court into submission like some tinpot caudillo. Roosevelt was unable to follow through with packing the Court, but the gambit, Bouie writes, “had the desired effect,” i.e. terrorizing the Court into giving the Roosevelt administration a freer hand. . . .
Do read the entire article. It is an excellent fisking of Bouie’s ramblings, though to be fair to Bouie, he is not innovating in idiocy. He is merely parroting run-of-the-mill progressive thinking, which is thoroughly ignorant of the Constitutional design on one hand and totalitarian on the other.
Williamson goes on to point out that the Constitution is in fact designed to thwart what he calls majoritarian rule — i.e., democracy. Our Founders feared and detested democracy as the worst of governing models. James Madison, the Father of the Constitution, was a man who was steeped in world history. With this background, he wrote of democracy in Federalist No. 10:
A pure Democracy, . . . can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. . . .
What the progressives propose is dangerous stuff. Attempting to pack the Supreme Court to establish permanent progressive dominance in our nation would be an invitation to a second civil war. That’s a Hell of a way to celebrate Constitution Day 2019, eh?
But in truth, this all didn’t just start in the past week. The Progressive Left has engaged in sustained attack against the Constitution since President Woodrow Wilson obscenely declared the Constitution unworkable and inapplicable to the modern world. Wilson believed that experts, working without any constraints, should rule America. In other words, he envisioned our modern regulatory bureaucracy. The problem for progressives is that, in the early 20th century and today, far fewer than the two-thirds of Americans needed to amend the Constitution agree with them. Wilson and the progressives therefore invented “the living Constitution” — the theory holding that the Constitution can be reinterpreted to mean anything that five justices, carefully selected for their progressive ideological purity, want it to mean. With this background, modern progressives’s reaction to Constitution Day 2019 was just par for the course.