“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?”

The Federal Judiciary As Supreme Legislature

     It has been noted on many occasions how the Left has relied on the decisions of federal judges, who are not elected and can hold their offices for life, to impose its agenda upon the nation. Of course, that requires that those judges do as the Left prefers. When it is otherwise, the Left becomes incensed. Their dudgeon becomes especially high when a federal court overturns a precedent that favored something the Left prizes.

     But throughout all this, little note has been taken of how the Right, when in power, has often relied upon the federal judiciary in a similar though not identical fashion. Consider as an example the odious Bipartisan Campaign Finance Reform Act of 2002. President George W. Bush disapproved of that Act but signed it anyway. He said openly that he hoped the Supreme Court would reject the Act as unConstitutional, which he believed it to be.

     Hold hard there: If Dubya believed the Act to be unConstitutional, why did he sign it? Why did he rely upon having it ruled out by SCOTUS?

     The answer is simple: President Bush feared the political consequences of vetoing the Act, which had many supporters among both Democrats and Republicans on Capitol Hill. But as federal judges, being unelected and appointed for life, do not suffer electoral ejection from office, they could protect America from the Act without fear. That SCOTUS upheld the Act came as an unpleasant surprise to the Bush II Administration.

     And today we have this article:

     American liberals once worshipped at the feet of Lady Justice. During the 1960s, the heyday of the progressive Warren Court, jurists became the tip of the left-wing spear. If the public refused to accept the latest progressive nostrum, no worries. Judges would simply impose whatever utopian scheme was in fashion.

     All in the name of everything that was good and right, of course. Liberals denied they were distorting the Constitution. They believed that if you checked the penumbras and emanations, as well as interstices and permutations, you could discover hidden meanings that had escaped decades, even centuries, of previous policymakers and judges.

     And there was no hidebound commitment to antediluvian precedent. Indeed, for 60s lefties, precedent was an attractive target. Sometimes deservedly: In Brown v. Board of Education of Topeka, a unanimous Supreme Court overturned the wretched Plessy v. Ferguson, the 1896 decision that enshrined “separate but equal,” legitimizing segregation. Decades of practical experience had made clear that separate was anything but equal.

     During that era, no one on the left talked about “super precedents” that could never, ever be reconsidered, the way progressives reverently speak of Roe v. Wade today. In those days liberals believed, amazingly, that bad decisions should be reversed.

     Please read it all. Today the Left sings paeans to stare decisis and “judicial restraint.” Why? Because owing to the flood of Trump appointments, the federal courts are trending to the Right, and likely will continue to do so for a couple of decades. The most recent threat to Leftist shibboleths, “abortion rights,” will come under High Court scrutiny with a case that questions whether the state of Louisiana can require that an abortion provider have admitting privileges at a local hospital.

     Regardless of whether you consider “judicial review” in the train of Marbury v. Madison to be a Constitutional power of the federal courts, the ironies here are delicious. The Left cannot have it both ways: unlimited power to review and overturn when the Left dominates the courts, but absolute adherence to stare decisis when the Right is in the ascendant. Yet that appears to be their aim.

     Consider this small matrix of Leftist rhetorical emissions, composed by the great Thomas Sowell:

Position	Before Enactment	After Enactment
Left-Favored:	“Inevitable”	“Here to stay”
Left-Opposed:	“Unrealistic”	“Outmoded”

     And that, Gentle Reader, is what Leftists say when they’re not foaming at the mouth and dripping vitriol from their fangs.

     Because of the Rightward shift of the federal courts, the Left’s drive to dismiss the text of the Constitution in favor of a “living document” that says only what the Left wants it to say is foundering...and we have the 45th President of these United States, Donald J. Trump, to thank. Let this be a reminder to those thinking of not supporting President Trump come November 3.

No Supreme Law Needed?

     It appears that that’s what U.S. Seventh Circuit Court of Appeals Judge Richard Posner thinks:

     Judge Richard A. Posner, who was appointed by President Ronald Reagan in 1981 and serves on the U.S. Court of Appeals for the Seventh Circuit in Chicago, has published an op-ed at Slate declaring that the U.S. Constitution is a waste of time.

     And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today. David Strauss is right: The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.

     In short, let’s not let the dead bury the living.

     But the Constitution is the Supreme Law of the Land. It is the arbiter for whether legislated laws are acceptable and possess governing force. If the Constitution is to be ignored, against what standard, then, will legislated laws be judged valid or invalid?

     A year and a day ago, I wrote:

     The Supreme Court has just written into our “Constitutional” framework that:

• The text of a law doesn’t matter;
• The text of the Constitution doesn’t matter;
• What a majority of “Justices” imagine about what those who passed the law intended are of decisive legal weight;
• There is no human practice, custom, tradition, or institution which the State cannot seize and tax, regulate, reorganize, or completely redefine to suit itself.

     The entire edifice of constitutionalism has just been ceremoniously trashed. Oh, we could see it coming from miles away. At least, I could; I’ve been watching this progression too closely and for too long to harbor any illusions about it. However, I must admit that I didn’t expect it to happen quite so rapidly or precipitously. Alvin Toffler would have something to say about that, wouldn’t he?

     We will pay for this in blood. I can only hope that the first persons to render up their due will be those selfsame “Justices.”

     Back then, my conclusions were only implicit in recent Supreme Court decisions. But now, a highly respected Court of Appeals judge, who has occasionally been mentioned as a reasonable choice for the Supreme Court, has expressed them openly. How much longer will it be before a majority of the Court signs onto a decision that explicitly nullifies the Constitution in all respects – and what will we do then?

     Keep your powder dry, Gentle Reader.

Our Greatest Failures Part 3: Sovereign Immunity

     Some years ago, a friend of mine who sought to pursue an action against his township for mistakenly demolishing his house was told, in exactly the following words, that “The king can do no wrong.” The town functionary who said it was chuckling as he did so.

     This is the doctrine of sovereign immunity: the notion that a government, whether federal, state, or local, is immune to any recourse against it sought by private citizens. The following sentence from a 1991 decision concerning a suit against an Alaskan aboriginal town is particularly striking:

     [W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention."

     (I particularly like the interpretation of Amendment XI as standing “not so much for what it says,” don’t you? “It doesn’t mean what it says; it means what we say it means.”)

     In combination with sovereign immunity doctrine, the Martinez-Barker decision allows individual State functionaries to claim as their defense that they were “just following orders” in committing even a major felony against a private citizen. Thus, a government can do anything to a private citizen without it or any of its minions being vulnerable to legal action.

     Note how this contradicts the legal doctrine under which the Nuremberg war crimes trials were conducted.

     At this time, government agents are getting away with quite a lot. Nor did it start with Ruby Ridge.

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     The conception of the American polity as one governed by the “rule of law” would suggest that no one, regardless of his station, can claim immunity from the law. Indeed, it was a point often and publicly made by presidents and legislators before the Civil War. Isabel Paterson considered it a fundamental distinction between American society, which she called a “Society of Contract, and its European forebears in which altitude of birth could immunize an individual against legal claims, which she characterized as “Societies of Status.”

     Yet we see today, from Ruby Ridge, the Waco massacre, and other, less well publicized incidents, that the “rule of law” is a fiction when it comes to seeking redress against a government or a politically privileged individual. When it was asserted that “The king can do no wrong” in medieval times, the unspoken codicil was “You just try to do something about it.” That’s not supposed to be the case in these United States, as Amendment II should make clear. Yet the courts have maintained the “sovereign immunity” pretense even in the face of the most outrageous misdeeds.

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     Have a snippet from a great science fiction novel of the early Seventies: Larry Niven’s Ringworld:

     Earth's population had been stabilized, about the middle of the twenty-first century, at eighteen billion. The Fertility Board, a subsection of the United Nations, made and enforced the birth control laws. For more than half a thousand years those laws had remained the same: two children to a couple, subject to the judgment of the Fertility Board. The Board decided who might be a parent how many times. The Board might award extra children to one couple, deny any children at all to another, all on the basis of desirable or undesirable genes.
     "Incredible," said the kzin.
     "Why? Things were getting pretty tanj crowded, with eighteen billion people trapped in a primitive technology."
     "If the Patriarchy tried to force such a law on kzinti, we would exterminate the Patriarchy for its insolence."

     The “kzin,” known (at that time) as Speaker to Animals, was expressing his sense that the kzinti Patriarchy, a nominally unbounded authority over all kzinti, would nevertheless not be allowed certain abuses of its supposed power. (He may have been correct; I’ve never visited the kzinti homeworld.) In practical terms, this is also the American attitude...until the American in question collides with the doctrine of sovereign immunity.

     On occasion, sovereign immunity has failed to protect a government; see the Battle of Athens for a recent example. When a sufficient number of persons are sufficiently well armed and sufficiently motivated, they can topple a government. In that sense, sovereign immunity in the U.S. is a fiction, for few local governments are better armed than their residents en masse. Indeed, I would guess that at this time no state government could outgun its residents without federal assistance. However, the fiction is important, above all for a terrible reason: it increases the probability that a truly outrageous government act will precipitate a rebellion and the concomitant bloodshed.

     Amendment I, which includes the express acknowledgement of “the right of the people to peaceably assemble, and to petition the Government for a redress of grievances,” implies thereby that sovereign immunity is an unAmerican concept, the rhetorical vermiculations of jurists notwithstanding. Yet it has been maintained for more than a century. I can’t nail it down, but I have a strong suspicion that the origin of this noxious judicial doctrine might be found in the many overreaches of Reconstruction governments after the Civil War. If that proves to be so, it will add further ammunition to the cause of those who argue that that war, despite the liberation of the slaves and the preservation of the Union, is something modern Americans should hesitate to defend. But that’s past. What’s of much greater importance is whether sovereign immunity can be undone by anything short of a national revolt.

     Food for thought.

Antonin Scalia, 1936-2016, Requiescat In Pacem

     By now my Gentle Readers have probably learned of the death of Supreme Court Associate Justice Antonin Gregory Scalia yesterday, from causes as yet unannounced. Scalia was a jurisprudential giant, arguably the sharpest mind to sit on the Court over the century behind us. His death is a blow to Constitutional scholarship and precise reasoning...and of course, a fresh crisis for the Obama Administration to try to exploit.

     Rather than go into an extended dithyramb over Scalia’s many contributions to Supreme Court jurisprudence, I’ll simply post this link to some of his pithiest writings and statements.

     Take a moment to mourn with me the passing of this dedicated Justice and scholar. We will not soon see his like again.