Something To Watch For

     The Supreme Court’s recent 5 to 4 decision upholding the First Amendment’s guarantee of freedom of religion saw Chief Justice John Roberts in the minority. That’s right, SCOTUS fans: supposed Catholic and Constitutionalist Roberts voted against the protection of religious freedom. However, owing entirely to the timely nomination and confirmation of Associate Justice Amy Coney Barrett, religious freedom was upheld, albeit narrowly.

     This puts me in mind of another recent Supreme Court Chief Justice, one remembered fondly by very few–and no, I’m not one of the few: the late Warren Burger. Have a snippet from Bob Woodward and Scott Armstrong’s excellent book on the Burger Court, The Brethren:

     The Chief [Justice Warren Burger] spread a large sheet of plain butcher paper in front of him on the desk. Across the top were listed the names of Justices. Down the left side were the names of the cases heard so far that term. The sheet was Burger’s most powerful tool in controlling the Court. It represented the workload of each Justice. By tradition, the senior Justice in the majority at conference selected the Justice who was to write the Court opinion for the majority. Since the Chief was considered senior to all the others, he made the assignments when he was in the majority. Burger was careful, in his first term, to make sure he was in the majority most of the time—even if he had to adjust his views. Leadership in the Court could not be exercised from a minority position, he felt. [Emphasis added by FWP.]

     Never mind why supposed Constitutionalist Roberts now votes with the Leftists most of the time. Just take it as written that he will continue to do so, whatever the reason. Now that the Barrett confirmation has put him and the “open” Leftists in the minority, Roberts will be tempted—possibly induced by outside pressure—to do as Burger did and “adjust his views” to vote with the five conservatives. That would allow him to assign the opinion in a case with a conservative majority to one of the Leftists, or to himself. That would enable him to vitiate a conservative decision with a Left-leaning opinion. If, as has been suggested elsewhere, Roberts is being controlled from outside the Court by blackmail threats, the addition of Barrett to the Court makes this a possibility to watch for.

     My sincerest-sounding apologies for giving you something new to worry about while you’re still digesting your Thanksgiving dinner, Gentle Reader. The stuffing was really good this year, wasn’t it? Just the thing to soothe a troubled stomach. Warm up a little for lunch, maybe with some of the leftover gravy or cranberry sauce. After that it will be time to inventory the ammo once more.

“Outmoded,” “Inevitable,” And “Here To Stay”

     Imagine along with me, if you please.

     There is now a 5.5 to 3.5 conservative majority on the Supreme Court. (I refuse to count Chief Justice John “Oh, let’s call it a tax” Roberts as a conservative; he votes sensibly about half the time at most.) Some cases come before the Court that bear upon the soundness of prior Court decisions:

1. Abortion “rights;”
2. Same-sex marriage;
3. Right to keep and bear arms;
4. Legislative superiority to regulation;
5. Preferential treatment by race and / or sex.

     Constitutionally faithful Justices would rule that:

1. There is no Constitutional guarantee of a right to abort an unborn child;
2. The Constitution does not grant the federal government authority over marriage;
3. The right to keep and bear arms is explicitly protected by the Second Amendment;
4. Regulators may not go beyond the bounds of the authority granted them by legislation;
5. Preferential treatment violates the Equal Protection clause of the Fourteenth Amendment.

     Those decisions would flow directly from the plain text of the Constitution. If rendered as I have indicated, they would overturn three prior Supreme Court decisions and reinforce two others.

     The Left’s flacksters would find themselves arguing in two incompatible fashions. Concerning topics 1, 2, and 5, they’d scream about stare decisis and how “unfair” it would be for people accustomed to the associated “rights” to be deprived of them. But on topics 3 and 4, they’d bang a quite different drum: the constraints associated with those subjects are “outmoded,” their modification in favor of greatly expanded powers for the regulators in the alphabet agencies “inevitable.”

     The Left’s screaming would be equally loud in both directions. But whom would it persuade? The media, at least as presently constituted, would be on the Left’s side. But what would that amount to, in the currency of influence over the Court’s decisions? How would it affect the degree of respect shown to the Court by the other two branches of the federal government?

     The question is both immediate and imperative.

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     The judicial branch of the federal government was once called “the least dangerous branch,” owing to its inability – by design – to enforce its decisions. Its power, if that word be appropriate in this context, arises entirely from the respect shown to it by the other branches. But that respect is not a guaranteed-never-to-elapse state of grace. Indeed, in at least one other case of historical import, the executive branch has ignored a Supreme Court decision:

     Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.

     The opinion is most famous for its dicta, which laid out the relationship between tribes and the state and federal governments. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States....

     In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" This quotation first appeared twenty years after Jackson had died, in newspaper publisher Horace Greeley's 1865 history of the U.S. Civil War, The American Conflict. It was, however, reported in the press in March 1832 that Jackson was unlikely to aid in carrying out the court's decision if his assistance were to be requested. In an April 1832 letter to John Coffee, Jackson wrote that "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." In a letter in March 1832, Virginia politician David Campbell reported a private conversation in which Jackson had "sportively" suggested calling on the Massachusetts state militia to enforce the order if the Supreme Court requested he intervene, because Jackson believed Northern partisans had brought about the court's ruling.

     The Court did not ask federal marshals to carry out the decision.[9] Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce.[10][11]

     Most tellingly, even though President Jackson and the executive authority of Georgia refused to enforce the Court’s decision, Worcester v. Georgia has become the foundation for legal relations between the Indian tribes and other governments in the United States. But that degree of ongoing deference to the probity and wisdom of the Court is not guaranteed. Indeed, a succession of inane (not to say insane) decisions by the Court could erode respect for it to nothingness.

     Certain decisions of recent vintage – e.g., the ones associated with topics 1 (Roe v. Wade), 2 (Obergefell v. Hodges), and 5 (Grutter v. Bollinger) in the opening segment – have already begun to erode it.

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     The counterpoise of the judicial branch to the “political” branches has come into question in recent decades. It’s been debated whether it’s still possible to maintain a truly independent judiciary in these hyper-partisan times. The question is a good one, especially in light of the recent upsurge in the use of violence and threats thereof to intimidate courts into delivering verdicts favorable to an activist mob.

     Ironically, it’s also controversial for a judge or Justice to proclaim himself an originalist or a textualist. Those positions, once regarded as the only respectable stances for a trustworthy jurist, have been condemned – from the Left, of course – as contrary to all manner of contemporary “values.” Here’s an example, provided by a United States Senator:

     Sen. Ed Markey (D-Mass.) on Monday lambasted Senate Republicans for their full-throated support of Judge Amy Coney Barrett, a religious conservative and President Trump's nominee to the Supreme Court who is expected to be confirmed by the end of the day.

     "Originalism is racist. Originalism is sexist. Originalism is homophobic," Markey tweeted Monday. "Originalism is just a fancy word for discrimination."

     Needless to say, the Dishonorable Senator Markey would prefer that the Constitution be treated as a “living document:” i.e., one with no fixed meaning. Such an attitude would transform the Supreme Court into yet another political body, subject to the ebb and flow of popular sentiment and the influence of activists. It would also eliminate the Constitution’s constraints on government...which, should the Left regain power, enable it to impose a never-ending, all-powerful tyranny upon these United States.

     I’ve cited this passage from Shadow of a Sword on several previous occasions, but I feel that I must do so again:

     “Miss Weatherly,” Sumner said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
     “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
     “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
     “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

     Is the desire to know what the law is “outmoded?” Is it “inevitable” that, should the Left ever again dominate the federal government, we will lose all hope of objective and unchanging law? Or have we already fallen into that terrifying abyss – and if so, are we “here to stay?”

Now The Fun Begins

     As had been predicted, yesterday President Trump announced his nomination of Seventh Circuit Court of Appeals Judge Amy Coney Barrett to the Supreme Court seat vacated by the recent death of Ruth Bader Ginsburg. And – as has been predicted – leftists’ heads are exploding from coast to coast.

     Of course, we must expect leftists’ heads to explode when they don’t get their way. That’s become par for the course in these United States. As the late Ruth Bader Ginsburg was regarded as a secure vote to preserve such anti-Constitutional atrocities as the Affordable Care Act and Roe v. Wade, the prospect of having Ginsburg’s replacement be a firm Constitutionalist was a heavy blow.

     They probably expected President Trump to nominate a judicial conservative. But a Catholic! And just look at her family: she really means it! That’s nothing less than the roof falling in on them. That would put six professed Catholics on the Court. Catholics are the last people in America it’s okay to discriminate against! How can you take that away from us? This nomination must be defeated!

     However, while anti-Catholic bigotry is alive and well in these United States, it still speaks in whispers. Arguments against the Barrett nomination, therefore, must be couched in terms compatible with the non-discrimination pose the Left strives to maintain. (Shut up with your nonsense about discrimination against white men. That’s not racism; that’s justice.)

     The Democrats’ standard-bearers are of course horrified that the last particle of Obama’s “legacy” is threatened by the Barrett nomination:

     Senate Minority Leader Chuck Schumer, D-NY, declared a vote for Barrett as "a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions."

     "By nominating Judge Amy Coney Barrett to the Supreme Court, President Trump has once again put Americans’ healthcare in the crosshairs," he said, adding he would "strongly" oppose her nomination.

     He also accused Trump and McConnell of "shamelessly rushing to fill Justice Ginsburg’s seat less than 40 days before a presidential election."

     "Justice Ginsburg’s dying wish was that she not be replaced until a new president is installed. Republicans are poised to not only ignore her wishes, but to replace her with someone who could tear down everything that she built," he said. "This reprehensible power grab is a cynical attack on the legitimacy of the Court."

     And also:

     Remarkable, this unwillingness to allow that the Affordable Care Act, which the Court has chipped away several times, just might be unConstitutional in its entirety, an exercise of a power never granted to Congress. But that’s the Left for you. Though it grants no stature to the victories of the Right, which it will assault a outrance, the Left insists that its victories, no matter how they were achieved, must be regarded as “irreversible.”

     We also have the spectacle of this New York Times column by Elizabeth Breunig:

     Roman Catholicism does not readily distinguish between public and private moral obligations. In the thought of John Locke, one of liberalism’s earliest architects, willingness to make that distinction was critical to participation in a tolerant society. “Basically,” the political theorist Jean Bethke Elshtain wrote in a 1999 essay, “Locke drew up a strong civic map with religion within one sphere and government in another. A person could be a citizen of each so long as that citizen never attempted to merge and blend the two.” Locke notably excluded Catholics from the religions meriting toleration because he suspected they could not be trusted to leave their faith in the appropriate sphere....

     Roman Catholic schools have warred bitterly over their exemption from anti-discrimination employment statutes, scoring a win in a case argued before the Supreme Court as recently as this summer. Catholic hospitals have found themselves embroiled in court battles for refusing to perform or even discuss abortions, regardless of state or federal law. And, perhaps most famously, the Little Sisters of the Poor, an order of Catholic nuns that operates nursing homes for low-income seniors, fought the Affordable Care Act’s contraception mandate all the way to the Supreme Court, and won.

     In each case, Catholic institutions have asked for exemptions to various laws, citing the First Amendment.

     Whether consciously or otherwise, Breunig has produced an anti-Constitutional argument. One of the most important purposes of the Constitution's constraint-by-specification of the powers of the federal government was to keep it out of the way of private convictions, as far as possible. Under an unconstrained government, there cannot be freedom of religion – unless, that is, “freedom of religion” is defined to occur solely within the confines of the skull. Inasmuch as the earliest European settlers came to North America in pursuit of freedom to practice their faiths, the irony is enormous.

     John Hinderaker pierces to the heart of the matter:

     The Democrats object to Amy Barrett because she is not a left-winger dedicated to perpetuating the Court as a liberal super-legislature, which is the only sort of justice they want. That is why they object to her, but they hate her because she is a Christian. The extent of anti-Christian bigotry on the left is astonishing, given that until recent years the U.S. was widely described as a Christian country. No longer.

     There will be a great tumult as the Senate undertakes Barrett’s confirmation hearings. It won’t be pleasant to watch...but fortunately, it won’t be necessary. We already know where the Senate Democrats stand. Government-controlled health care and unrestricted, unregulated abortion at any point during gestation are the hills they’re prepared to die on. Let’s hope the Republican caucus gives them a fine funeral, concluded with a fanfare of trumpets.

The Democratic Delusion (UPDATED)

     There are probably very few persons alive and awake at this time who aren’t aware that Supreme Court Associate Justice Ruth Bader Ginsburg has passed away. The emphasis this places on the importance of the presidential election cannot be overstated. In short, President Trump has the opportunity to replace a left-liberal justice with a right-conservative one. I doubt he’s going to let it pass him by, nor should he.

     But hearken to the most recent emission by the odious Senator Charles Schumer (D, NY):

     Senate Minority Leader Chuck Schumer, D-N.Y., tweeted his own statement that "[t]he American people should have a voice in the selection of their next Supreme Court Justice.

     "Therefore, this vacancy should not be filled until we have a new president,” Schumer added, using same phrase that McConnell employed denying federal judge Merrick Garland a confirmation hearing after the passing of Justice Antonin Scalia in 2016.

     Oh, really? I have but one question: Why?

     The Senate deferred action on the Garland nomination because at that time, the White House was in Democrat hands while the Senate was majority-Republican. It was an appropriate exercise of discretion in a split-control situation. The election of Hillary Clinton would have made it impossible to avoid a straight up-or-down Senate vote on Merrick Garland. The loss of the Senate majority to the Democrats would have had the same effect. But the election of Donald Trump and the GOP’s retention of the Senate majority would – and did – put the Garland nomination in a different light, one where the Senate could reasonably allow the incoming president to put forward a different nominee.

     Today, there is no split-control situation. The White House and the Senate are both Republican-dominated. It is reasonable for the president to submit a nominee to the Senate for its advice and consent. It is also reasonable for the Senate to act or not act on such a nomination in its own good time. What President Trump will do, and what Majority Leader McConnell will do, we shall soon see.

     But on a larger and more important point, Schumer’s nonsense about “the American people” deserving “a voice” in the selection of the nominee is contrary to the Constitutional design. Such a “voice” is expressed through their selections of Senators and President. With both those institutions in Republican hands, it is wholly within reason that the president should put forward the nominee of his choice, and leave what follows to the Senate.

     Schumer’s demand is a restatement of the democratic delusion: the notion that everything about the federal government “should” be decided by a majority vote of the citizenry. The Founding Fathers wanted buffers between the highest federal officials and the public to keep majority passions at bay, thus dampening the influence of the events of the moment and the machinations of demagogues. The Constitution explicitly – and quite justly – separated the Supreme Court from popular decision making, just as it originally separated the Senate and the presidency from them.

     Yes, the design has been tampered with: in my opinion, completely unwisely. But what remains still insulates the Supreme Court from “democratic” passions and the events of the moment. As we speak here of the body that rules on the Constitutionality of the laws proposed and passed by the elected legislators of these United States, that is exactly as it should be.

     In closing: Note that the Democrats have never had a problem with using the courts – or the Court – to rule against majority sentiment when that was the Democrats’ preference. On many occasions a Democrat-dominated Supreme Court has ruled in a fashion that contradicted the opinion that prevailed among American citizens. Miranda v. Arizona is one notable example; another is Kelo v. New London. Should the Left ever again acquire control of the Court, we may be sure that such decisions will again be issued in such circumstances.

     UPDATE: This has been making the rounds:

     Kinda hits home, doesn't it?

Quickies: Muscle Is As Important As Message

     Many gun-rights advocates found the late Antonin Scalia’s majority opinion in the famous Heller case to be bittersweet at best. Justice Scalia affirmed that the right to keep and bear arms is an individual right, which is supremely important. However, the good Justice made a critical mistake toward the end of his opinion by sanctioning “reasonable regulations” on firearms ownership by state and local governments. That word reasonable has been the bane of rights advocates for many decades. No two persons agree on what it means.

     But wait: there’s more! Supreme Court decisions sound…well…supreme. But in practice they have only as much de facto authority as other jurisdictions, and other levels of government, show them. The executive branch of the federal government has ignored Supreme Court decisions about firearms rights in several important ways. State and municipal governments have flagrantly ignored such decisions when it suited them – and in Scalia’s “reasonable regulations” language, anti-gun states have found the golden key to denying their residents’ rights without even admitting that they’re doing so.

     If a regulatory regime is instituted with the power to decide who may own a gun of some type, then there will be a “process” of some sort for making such decisions. That process will take a nonzero amount of time to reach its decisions. Who decides what factors may be included in the decision making? Who decides how long that process may be protracted? Who decides what is “reasonable?”

     When I thought to apply for a pistol permit two years ago, the police sergeant who had been made the point man for applications in my county told me not to hold my breath while I wait, albeit not in so many words. What he did say, as accurately as I can remember it at this remove, was that the wait would be at least eight months and had been known to exceed that. And by the way, the permit-process fees, which totaled to more than $100, were non-refundable.

     That police sergeant wasn’t kidding. A dear friend who applied for a handgun permit three years ago is still waiting for a decision. Reasonable? You decide.

     It gets worse yet. The Supreme Court has no way to enforce the decisions it makes. Enforcement authority was denied to it deliberately, as a Constitutional constraint on its effective power. So even if the Heller decision were a flat denial of all regulatory power to the states and municipalities, the Court would still have to deal with being ignored by other jurisdictions and levels of government. There’s no effective penalty for it.

     If there’s a way out of this maze – that is, a way that doesn't involve hanging the majority of those in high office – I haven’t found it yet, and not for lack of effort.

     Delay is the deadliest form of denial. – C. Northcote Parkinson

Quickies: An Entertaining Thought

     A lot of us in the Right are looking forward to President Trump’s next Supreme Court appointment, which will probably cement a conservative majority on the Court for at least two decades. But I’m looking forward to it out of a kind of hope some might find peculiar.

     Imagine that the appointee is Amy Coney Barrett, recently installed on the Seventh Circuit Court of Appeals. Judge Barrett is a Catholic, and apparently a serious one. (Sad to say, serious Catholics are a declining demographic in these United States.) Having seen Brian Buescher abused by the Democrats over his Catholicism, I’m hoping for exchanges such as the following at Judge Barrett’s confirmation hearing:

Sen. Harris: Judge Barrett, what is your opinion of the decision in Roe v. Wade?
Judge Barrett: It was an outrage. Clearly wrongly decided.
Sen. Harris: So you would vote to overturn that decision?
Judge Barrett: Given the opportunity? I certainly would.
Sen. Harris: How can you sit there and advocate the repeal of a woman’s right to choose?
Judge Barrett: Abortion is murder. If there’s a right to life, there can be no right to murder.
Sen. Harris: I’m appalled that you can consider yourself fit for the highest court in America.
Judge Barrett: I’m appalled that you, who openly defend the murder of innocent children, have a seat in the U.S. Senate.
Sen. Harris: How dare you!
Judge Barrett: Why not? You were never going to vote to confirm me, so why shouldn’t I say what I think?

     I’d buy a Pay-Per-View to see that. Maybe it’s unlikely, but still...!

Interpretations

     President Trump’s recent suggestion that he might undo the birthright citizenship of “anchor babies” – babies born to mothers illegally in the United States – has evoked a flurry of opposed interpretations of the first paragraph of the Fourteenth Amendment to the Constitution:

     All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added by FWP]

     The emphasized phrase is the nub of the matter. Is a child brought illegally into this country in his mother’s womb subject to the jurisdiction of the United States? When the Fourteenth Amendment was ratified, the answer was no. Left-leaning outlets claim that the Supreme Court changed this interpretation in U.S. v. Wong Kim Ark, but that’s a tendentious reading of the decision. Ark’s parents were legal residents of the United States when Ark was born. There is no indication anywhere in the majority opinion that it was intended to apply to the children of illegal aliens.

     Conservative commentators have invoked the context in which the Fourteenth Amendment was passed: specifically, that it was aimed at establishing the citizenship of children born to the recently emancipated slaves. This was an egregious matter indeed, for after the 1808 legal changes that forbade the further importation of slaves, slave owners asserted that a child born to a slave was, quite as much as the mother, the slave owner’s rightful property. The federal government did not address the matter, and of course the slave states would not contradict the assertions of the slave owners.

     I’ve searched my reference books for further Supreme Court decisions relevant to the question. I can’t find any.

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     There is considerable conflict among the nations about this matter of jurisdiction. The two principal conceptions about it clash dramatically.

     The first of these is the Law of the Soil or jus soli:

     In some countries, jus soli system or birthright citizenship is followed. According to this principle, citizenship of a person is determined by the place where a person was born. Jus soli is the most common means to acquire citizenship of a nation.

     The second conception is the Law of the Blood or jus sanguinis:

     This term when used in the context of citizenship refers to acquisition of citizenship, by the citizenship of the parents. It lays down the principle that the nationality or citizenship of a person is determined by the citizenship of the parents who is a national or citizen of a state.

     In its determinations of citizenship, American law uses both conceptions:

     Pursuant to 8 USCS § 1401, the following persons can acquire citizenship by jus soli:

1. A person born in the U.S., and subject to its jurisdiction.
2. A person born in the U.S. as a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.
3. A person of unknown parentage found in the U.S. while under the age of five year. The person can remain a U.S. citizen if it is not shown before s/he attains twenty five years that the person was not born in the U.S.
4. A person born in an outlying possession of the U.S. (i.e., including Puerto Rico, the Panama Canal Zone, Panama, the Virgin Islands and Guam.) of parents, one of whom is a citizen of the U.S. who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.

     The above supposedly applies jus soli criteria. However, note that the children of federal government employees stationed in other nations, no matter how long it might have been since either parent was last in the United States, are granted birthright citizenship through the application of jus sanguinis. (It would be far more difficult to hire people into the Foreign Service were that not the case.)

     American law is moderately (but not completely) averse to the concept of dual citizenship. If American citizen parents were to birth a child in another country while there under the terms of the fourth provision of 8 USCS § 1401 enumerated above, American courts would recognize the child’s American citizenship, but (with certain exceptions) would not recognize his citizenship in that other country. This provision is seldom of importance to ordinary Americans. It tends to arise only in matters of extradition and the voluntary renunciation of American citizenship, both of which are fairly rare.

     Senator Ted Cruz was briefly troubled by dual-citizenship questions during his 2016 presidential campaign. Cruz was born in Calgary, Alberta to Eleanor Wilson, an American citizen who satisfied the fourth provision of 18 USC § 1401; thus, he had birthright American citizenship. However, he also had jus soli Canadian citizenship, owing to his birth in that country. That evoked challenges to his Constitutional qualifications for the office of president, which were ultimately resolved in his favor. (Whether Cruz was qualified under jus soli to become prime minister of Canada has never been addressed.)

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     It’s quite a mess, isn’t it? In all probability it won’t be settled any time soon. Should a case be presented to the Supreme Court, the Court might well decline to hear it. If the Court were to hear it, there would be arguments on both sides, owing to the clashing applications of jus soli and jus sanguinis in federal law. Moreover, as birthright citizenship has been conferred on the children of illegal aliens for several decades, a conservative’s approach to the issue would be caught between the strict wording of the Fourteenth Amendment and a desire to preserve stability by ratifying existing practices.

     Americans’ great need is to know what the law really is:

    “Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
    “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
    “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
    “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

     Before we leave this subject, have a highly relevant observation from Robert Curry:

     The Democrats are done with paying lip service to American ideals they do not believe in just so they can get elected. They have had it with the American people, and they have decided to replace us with people more to their liking, people who will never consider blocking their progressive agenda.

     How can the Democrats be so certain that the floodtide of illegals they’ve chosen for this task can be counted upon to empower them? Could it be because those people are not exactly dedicated to the American idea, either?

     These new people may not be able to mouth the progressive talking points against the Electoral College or argue for “the living Constitution” but, for the progressives, their hearts are in the right place and their votes will obediently follow their benefactors. That’s what counts.

     The stakes are clearly very high. High stakes means that the big guns – legal and opinion-editorial – will be firing. Nor would they cease to fire even after a definitive, 9-0 Supreme Court decision. Two utterly opposed agendas are involved, and the backers of both will go all in.

     Stay tuned.

The Oldest Trick

     It’s getting so I hate to read the morning news. That’s not a condition conducive to opinion-editorializing. If this farce continues unabated, I might just drop this gig in favor of telling children’s stories.

     Annnnddd what do we have here? Oh, look at this! Another woman has trumpeted a charge of sexual misbehavior against Supreme Court nominee Brett Kavanaugh! And once again:

• The accuser is a far-left activist;
• She’s named six witnesses, yet all six deny having witnessed what she claims to have occurred;
• The New Yorker, once a worthwhile publication...well, the cartoons were funny, anyway...has published this bit of entirely uncorroborated scandal-mongering as if it deserves anyone’s credence;
• And Senate Democrats have immediately jumped on it as automatically disqualifying Kavanaugh from the Court.

     Does anyone else see a pattern here? Don’t all answer at once, now.

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     One unverifiable allegation of misconduct from a dubious source hasn’t been enough to sink the Kavanaugh nomination. However, it was enough to delay proceedings, temporarily keeping Kavanaugh off the Court. The Democrats consider that a sufficient success to be worth repeating the tactic. And why shouldn’t they? Delay sufficiently prolonged is indistinguishable from defeat.

     Once again, the late, undervalued though immeasurably insightful C. Northcote Parkinson is on the case:

     The theory of ND [Negation by Delay] depends upon establishing a rough idea of what amount of delay will equal negation. If we suppose that a drowning man calls for help, evoking the reply ‘in due course,’ a judicious pause of five minutes may constitute, for all practical purposes, a negative response. Why? Because the delay is greater than the non-swimmer’s expectation of life....Delays are thus deliberately designed as a form of denial and are extended to cover the life-expectation of the person whose proposal is being pigeon-holed. Delay is the deadliest form of denial.

     As regards Judge Brett Kavanaugh, endless delay would be the Democrats’ grand prize, effectively preventing his nomination from ever receiving a vote. However, they can’t rely upon any single stroke toward delaying the vote as “conclusive.” They must mount a barrage of nebulous accusations, each of which can “justify” demands for further investigation, negotiations over the terms of testimony, and the like. This will ensure that when the steam has bled out of the current “controversy” there are other shots in the magazine, ready to be fired.

     It really is the oldest trick in the book. Don’t say “no,” outright; that sounds stubborn, unpleasant. Say “Just wait a minute,” and keep saying it until your adversary throws up his hands and walks away. Then you can claim the field by default.

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     The question that demands our attention this morning is a simple one: Why does it work? How can it work, given that the dismissal of the first few such accusations should constitute conclusive evidence of bad faith among the accusers and their supporters?

     Quite simply, the Democrats can keep the shitstorm raging for as long as they can keep the legacy media blathering about it. Organs such as the New Yorker are endlessly willing to do as they’ve been told by their Democrat masters. It’s their strategy for retaining the shrunken rump of their formerly robust readerships.

     For one “respectable” press organ to perpetuate such a “controversy” is sometimes enough, if that organ retains a sufficient veneer of seriousness from its days of wine and roses. For essentially the whole of the legacy media to do so creates a barrier that cannot be crossed without more courage and resolve than Senate Republicans possess.

     You asked why the seemingly discredited and disgraced legacy media remain a potent force? Now you know.

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     If there’s a grand strategy behind it all, it would be to discourage good persons who’ve done things they regret in the remote past from contending for high offices, whether elective or appointive. It’s a working postulate of adulthood that no one’s past is entirely sinless. We’ve all done things we regret and would rather forget. The only safe harbor lies in leaving the past to fade from memory.

     The paradox here is that we all know that. What’s the saying? “We’re only human,” or some such? And with the conspicuous exceptions of Jesus of Nazareth and his mother, everyone who’s ever been born or ever will must repent of something before facing the Particular Judgment.

     Let’s stipulate that Brett Kavanaugh never, ever committed a sexual sin – that the accusations to that effect are fabrications in their entirety. A sufficient investigation of his past might well establish that beyond a reasonable doubt...but what else would emerge in the course of such an investigation? Did he ever cheat on an exam? Did he ever speak harshly to a child? Did he ever “borrow” some office supplies for home use? Unless Brett Kavanaugh is Christ come again, there’ll almost surely be something in his past that the Left can use, and a sufficiently prolonged, sufficiently microscopic investigation will ferret it out.

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     The Left’s “standards apply to thee, not to me” position has been battered of late, especially as regards accusations of sexual misconduct. Well verified instances brought down Al Franken, Elliot Spitzer, and Harvey Weinstein, among others. Those blows have left them smarting, and perhaps particularly eager to “get a little of their own back.” That makes some of this tempest understandable, though it doesn’t excuse the presentation of nebulous and unsubstantiated charges – charges impossible to refute under a guilty-until-you-prove-yourself-innocent standard – to destroy a good man’s reputation. Still more to the point is something I’ve written about before:

Success Breeds Emulation.

     I guarantee that if the Left succeeds in torpedoing the Kavanaugh nomination with these accusations, they’ll have a stockpile ready for the next conservative nominated to the Supreme Court – or anywhere else.

42,000 Pages?

     The way this story is being reported, it sounds like dirty pool:

     WASHINGTON — Chaos broke out at the start of the Brett Kavanaugh confirmation hearings, as Democrats demanded an immediate adjournment while protesters interrupted with shouts and were dragged out by police.

     Just as Judiciary Committee Chairman Chuck Grassley (R-Iowa) began his opening statements, Sen. Kamala Harris (D-Calif.) asked that the hearing be adjourned to review the 42,000 pages of documents dumped on senators late on Labor Day.

     “We cannot possibly move forward, Mr. Chairman,” Harris pleaded.

     “You are out of order,” Grassley responded.

     But appearances can be deceiving:

     “We will continue as planned,” Grassley said as the room erupted in boos and jeers.

     “Most senators would not agree to turn over their staff’s communication to anyone,” Grassley said, citing attorney/client privilege.

     The documents in question had nothing to do with Judge Kavanaugh’s record as a jurist. Rather, they pertained to his prior time as a lawyer in private practice – materials to which the objecting Democrats had no legal right nor claim on the basis of the diligence expected of a Supreme Court confirmation hearing. Indeed, Kavanaugh could have withheld them under the rules of attorney / client privilege. Why he didn’t, I cannot say.

     It has become indisputable that the left will do anything and everything to impede the Kavanaugh confirmation, or any other element of the Trump agenda. No doubt the strategy has been meticulously planned out. The question remaining is whether Congressional Republicans can withstand the pressure the legacy media will bring to bear on them. So far the indications are promising...but stay tuned.

Quickies: Two Meanings Of “Narrow”

     The just announced Supreme Court decision in favor of Masterpiece Cakes / Jack Phillips, who had been pilloried for refusing to bake a special cake for a same-sex wedding, has been described as “narrow” despite having seven out of nine votes in the majority. That’s because there are two meanings for “narrow” when used to describe an appellate court action.

     We often hear SCOTUS decisions called “narrow” when the majority prevails by a single vote: e.g., a 5-to-4 decision. That’s a valid use of the term. Indeed, when a court decision is narrow in that sense, it can often prefigure decisions qualifying its impact and application, perhaps even a decision overturning it in years to come. Such decisions are the sort often determined by the political balance on the Court – specifically, which presidents nominated how many of the Justices – which makes them grist for the political forecasters’ mills.

     But the second meaning of “narrow” when applied to an appellate court decision is the one pertinent to the Masterpiece Cakes decision. That pertains when the majority opinion is written in such a fashion that it applies precedentally only to few cases out of a great many that would seem to share the most important features. From what I’ve read, Jack Phillips prevailed because of such an opinion: one that addresses very specific circumstances that would only apply to cases very much like his. To get another case through that “narrow” circumstantial and contextual window will require a great similarity to Phillips’s case.

     I’m still waiting for a same-sex couple to ask a Muslim baker to produce a special cake for their wedding.

The SCOTUS Goes Rogue

There will be much written about the Supreme Court of the United States (SCOTUS) most recent King v. Burwell decision regarding the Orwellian named, “Patient Protection and Affordable Care Act.”  Derisively named “Obamacare” by its critics, it was aptly renamed “SCOTUS-care” by Samuel Alito who wrote a stinging dissent to the bizarre and lawless decision by the six partisan lawmakers in black robes masquerading as Supreme Court justices.  

The reason for the exact wording that the 6-3 majority deliberately chose to ignore was plainly disclosed by Jonathan Gruber in many of his arrogant lectures.  The subsidy (“free money”) was to only be available to those who "enrolled…through an Exchange established by the State..."  Some 34 states, primarily led by Republican Governors, chose not to establish State exchanges.  The left intentionally crafted the bill to incentivize states to create exchanges and punish those who didn’t.   

On January 18, 2012, Gruber, an economist who was paid millions of dollars as a consultant on the ACA, said, "What's important to remember politically about this is if you're a state and you don't set up an exchange, that means your citizens don’t get their tax credits."  On January 10, 2012, Gruber said, "... if your governor doesn’t set up an exchange, you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens."  It was by design and codified in the law.

As the number of illegal invaders and ignorant Americans in our country rise faster than the temperature of a swine flu patient, the cost of health care will correspondingly explode.  As Ronald Reagan is often quoted as saying, “If you want more of something, subsidize it; if you want less of something, tax it.”  Only Obama, Pelosi, Reid and the other lying liberals could come up with a plan that manages to get the worst of both worlds -- subsidies creating inflation of prices and taxes to make less low-cost care available.   Not to mention, the less you earn/work, the greater your subsidy – a completely perverse incentive.

Some of the increased taxes to pay for this disaster include: “higher Medicare taxes, new annual fees on health insurance providers, fees on manufacturers and importers of brand-name pharmaceutical drugs and certain medical devices, limits on tax deductions of medical expenses, a new 40% excise tax on "Cadillac" insurance policies, and of course a 10% federal sales tax on indoor tanning services (or as Obama calls it, “the white privilege-tax”).

While it’s true it costs money to buy snake oil, and smart people usually have money, smart people don’t usually fall for the snake oil salesman’s pitch.  Stupid people, who might otherwise fall for the snake oil salesman‘s pitch, normally don’t have the disposable income for snake oil, or if they do, it’s not a lot of money; hence, the price of snake oil stays low.  But now, thanks to Obama/SCOTUS-care, the price of snake oil is about to explode, and those with money are about to fork out the money to buy it for those without. 

This is markedly different from the Georgia lottery. The lottery serves largely as a tax on the ignorant.  In the case of this government scheme, the state lures the uninformed and ignorant in to spend money they don’t have a lot of in the hopes of winning millions that they almost assuredly won’t.  The profits from this immoral but legal scam are then transferred to the children of the smart in the form of Hope Scholarships so that the cost of college tuition can continue to explode.  Easy-to-get student loans are similarly fueling runaway college costs.  The colleges know all-too-well that the parents are getting this “free” money, so they jack-up their prices accordingly.

If you thought health care or college is expensive now, just wait until it’s free.  Like the “cash for clunkers” program, Obamacare uses other people’s money to co-opt partakers into participating in the destruction of something that was actually working fine for many.  Like the lottery example above, the car dealer knows you got cash for your “clunker”, and you can bet he’ll get “his share” of that money.  The net result of cash for clunkers: a shortage of used cars for consumers that needed them and the complete destruction of those thousands of serviceable vehicles. 

 

The true destructive nature of Obamacare is yet to be fully realized.  Before you know it, the Supreme Court will rule two men can marry each other.  Truly, words have no meaning anymore.

This article was also appears in the 1 JUL 2015 Upson Beacon