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Permanent Emergency

Another gem from Kevin Williamson, A National State of Non-Emergency in National Review:

The recently proffered Republican health-care bill instantiates much of what is wrong with our politics: The bill was constructed through an extraordinary process in which there were no hearings, no review from the Congressional Budget Office, and no final text of the legislation until shortly before the vote. The process is erratic and covert rather than regular and transparent. It was put together in a purposeful way to avoid substantive debate and meaningful public discourse, making the most of the majority’s procedural advantages for purely political ends. The Republicans are perfectly within their legal authority to proceed that way. But that’s no way to govern. We all know this. As Rod Dreher recently put it, Republicans will have to choose whether they love the rule of law more than they hate the Left. Democrats faced the same choice, once, and they chose poorly, having set upon a course of political totalism that has seen the weaponization of everything from the IRS to the state attorneys general. Republican populists who argue that the GOP must play by the same rules in the name of “winning” have very little understanding of what already has been lost and of what we as a nation stand to lose. The United States will not thrive, economically or otherwise, in a state of permanent emergency.

What’s truly remarkable about our current constant national state of emergency is that no one can say exactly what the emergency is. But we all seem to be very sure that something has to be done about it right now, that we must rouse ourselves to excitement about it, and that the ordinary rules of lawmaking and governance no longer apply. There is not much political mileage to be had from arguing for regular order, transparency, and procedural predictability — but that’s part of what makes those things so valuable. Order in the little things is a necessary precondition of order in the big things. Orderly government cannot be built on a foundation of procedural chaos.

HKO

We have had a long history of strong disagreement in Congress, sometimes even coming to violence. Demonizing opposing views is nothing new, either.  But  the abandonment of procedural rules, the avoidance of debate, and the weaponization of political power has brought us to a state of dysfunction that is unique.  Bad bills are rushed together behind closed doors, and correcting them has become impossible.

The voters who solve problems everyday without this nonsense are outraged at this dysfunction.

 

The Law vs Moral Philosophy

from Kenneth Stars in the WSJ, Gorsuch Gets  Comfortable in Scalia’s Chair:

When Scalia ascended to the high court in 1986, he saw the danger of a runaway judiciary, as embodied in the Warren Court and to a lesser extent the Burger Court. The judges were “making it up” as they went along. Justice Gorsuch used those words in his first oral argument, a case involving a complex interplay of federal statutes. Like Scalia, Justice Gorsuch searched for an authoritative answer in the text alone. That approach, textualism, was Scalia’s way of restoring the judiciary’s proper role.

In contrast to Scalia, Justice Gorsuch came of age as a lawyer not in the freewheeling Warren Court era, but during the more judicially restrained leadership of Chief Justice William Rehnquist. By that time, the Federalist Society was going strong, and Scalia’s approach was increasingly in favor: The written Constitution was law, not moral philosophy.

At his confirmation hearing, he called Scalia a mentor who “reminded us that words matter—that the judge’s job is to follow the words that are in the law, not replace them with those that aren’t.”

Means Matter

One of the problems with the ‘ends justify the means’ mentality is determining whose ends you are pursuing. The idea of a living constitution sounds fine to the left as long as they are pursuing the goals the left values, but when the government shifts you want the restrictions of the Constitution and its devolution of power to protect your interests. The means do matter, even when they do not deliver the ends you desire. Principles and ideology matters even when they frustrate pragmatic solutions.

Glenn Harlan Reynolds, law professor and blogger at Instapundit, makes this point in The USA Today in  A ‘living Constitution’ on the right?

What if right-leaning jurists listened to their critics on the left, and adopted a “living Constitution” approach instead of relying on what the Framers understood the text to mean? As Barnett asks: “Why would you possibly want a nonoriginalist ‘living constitutionalist’ conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?”

Where else might we see changes? Well, I’m neither a conservative (I’m a libertarian) or a living constitutionalist, but I can imagine a few places. One is in the scope of government power. During the New Deal era, the Supreme Court — after being threatened with “court packing” by FDR — endorsed a massive expansion of governmental power on the ground that it would lead to greater efficiency in the economy. Instead, we got a bloated bureaucracy with serious accountability problems, and a disastrous expansion in spending, regulation and federal debt. Based on this experience, I can imagine a conservative justice who sees the Constitution as a “living breathing organism” that must be kept in tune with the needs of the day deciding that the New Deal Court’s decisions were mistakes that violate the Constitution, and must now be rolled back.

Likewise for the Warren Court’s “one man, one vote” rule for state legislative apportionment, in which states — unlike the federal government under the U.S. Constitution — were no longer allowed to have a house of their legislature apportioned by geography rather than population. The result has been that states like California or Illinois, which is red almost everywhere but in the Chicago metropolitan area, are totally dominated by the large populations of urban centers.   Those states are also governed badly and suffer from considerable degrees of corruption and enormous debt. Perhaps experience turns out to show that the “one man one vote” approach was wrong, and that there was wisdom after all in the Framers’ approach of not apportioning everything according to population.  A “living Constitution” changes with the times!

But my advice to those on the left attacking originalist approaches is this: Be careful what you ask for, because you won’t like it if you get it.

The Legislative Court of HRC

Probably the most objectionable statement from HRC (and this is quite a list) was in the second debate in how she would select justices for the Supreme Court. The transcript:

QUESTION: Good evening. Perhaps the most important aspect of this election is the Supreme Court justice. What would you prioritize as the most important aspect of selecting a Supreme Court justice?

RADDATZ: We begin with your two minutes, Secretary Clinton.

Thank you. Well, you’re right. This is one of the most important issues in this election. I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but, you know, maybe they tried some more cases, they actually understand what people are up against.

Because I think the current court has gone in the wrong direction. And so I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that.

I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.

Now, Donald has put forth the names of some people that he would consider. And among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality. I think that would be a terrible mistake and would take us backwards.

I want a Supreme Court that doesn’t always side with corporate interests. I want a Supreme Court that understands because you’re wealthy and you can give more money to something doesn’t mean you have any more rights or should have any more rights than anybody else.

So I have very clear views about what I want to see to kind of change the balance on the Supreme Court. And I regret deeply that the Senate has not done its job and they have not permitted a vote on the person that President Obama, a highly qualified person, they’ve not given him a vote to be able to be have the full complement of nine Supreme Court justices. I think that was a dereliction of duty.

HKO

Everything she wants the Supreme Court to do is the duty or the prerogative of the Legislature.  The Supreme Court should see that we are equal before the law and that the law upholds the spirit as well as the content of the Constitution.  Their job should not be to uphold legislation but to assure that the legislation complies with the Constitution, that majoritarianism is contained and that individual liberties are protected. Their job is not to correct legislation or modernize the Constitution beyond interpreting the law in light of modern changes. For example, the prohibition against unreasonable search and seizure could apply to wiretapping.

The Justice of Citizens United

In National Review Kevin Williamson writes The Book Burners. Citizens United, he reminds us, was about much more than big money in politics.  It was about denying the government the right to ban books and media.  It was about the upholding of our most important Constitutional right.

Lost in all of the deeply stupid rhetoric (“Money isn’t speech!”) surrounding the Citizens United case is the fundamental issue that was at question, to wit whether the federal government can censor films of which it disapproves. The film in question was called Hillary: The Movie, and it was very critical of Mrs. Clinton while she was seeking the Democratic nomination in 2008. The government attempted to forbid the distribution of the film on the grounds that it was critical of a political figure, which was at the time impermissible, under what is cynically known as “campaign finance” law, unless done in strict compliance with narrow and restrictive federal regulations, and then only at certain times. The Supreme Court rightly threw the law behind that out as rankly unconstitutional censorship of political speech.

What those beef-witted partisans who abuse the word “liberal” fail to appreciate is that the principle behind the so-called campaign-finance laws they support is an open-ended power of federal censorship of all political speech, journalism, literature, films, television, radio, and other communication. Some of the more sinister forces on the left understand that perfectly well, and the glee with which Elizabeth Warren and Bernie Sanders present the proposal of silencing their political critics is both astounding and horrifying.

During the Citizens United arguments, Justice Samuel Alito asked Malcolm Stewart, the deputy solicitor general defending the government’s censorship, whether the law would empower Congress to ban books. Stewart affirmed that books too must be subject to “electioneering communication restrictions.” And thus do our so-called liberals become book-burners.  That may be of some interest to organizations far outside of the world of conservative activism — donor-supported feminist publishing houses, say, or grant-funded environmentalist documentarians. The leader of the United States Senate is a conservative from Kentucky, and the leader of the United States House of Representatives is a conservative from Wisconsin. The Left would do well to consider just whom it would be empowering to establish a censorship code.  Republicans cannot be trusted with that power. Neither can Democrats. Neither can Libertarians, Greens, Freemasons, Elks, Methodists, or other bad hombres — or even good hombres, absolute power corrupting absolutely and all that.

Also in National Review, Mona Charen illuminates the importance of Citizens United in Fear-Mongering about Citizens United Undermines Faith in Elections

Clinton suggests that the decision prevents Americans from knowing who is funding political activity. Citizens United did nothing of the kind. It simply ratified the concept that groups of Americans, whether they come together as labor unions, advocacy groups, or corporations of various kinds, do not lose their right to speak when they join together. Under campaign-finance laws, groups like Citizens United or People for the American Way were prohibited from running ads for or against candidates at any time, and McCain/Feingold extended this prohibition to prevent such groups from even mentioning a candidate in a broadcast ad within 60 days of a general election. The Supreme Court held that such political speech was the essence of the First Amendment.

Contra the Democrats, there is no secret about who is spending what on American elections. Candidates, parties, traditional PACs, and super PACs must all disclose their spending and their donors. When Democrats speak of “dark money” they are creating a bogeyman. Here’s what they’re referring to: When non-profits like Planned Parenthood, trade associations, or the NRA, i.e. groups that devote more than 50 percent of their activities to non-political matters, spend money on political messaging, they do not have to disclose their donors (except funds earmarked for that particular ad). As former SEC chairman Brad Smith explains, this represents a small fraction of total campaign spending. In 2012, it was 4.3 percent. In 2016, it’s coming it at under 3 percent. We know how much they spend, because they must report it. We know what they represent, or in the case of a group like Americans for Prosperity, we can easily find out. And nothing in the Citizens United decision altered disclosure requirements.

Citizens United upheld the most cherished right protected by the Constitution. The disclosure requirements in current law are more extensive than ever before in American history. Moreover, there are some pitfalls in total disclosure, such as exposing those with unpopular viewpoints to harassment. Democrats obscure these essential girders of free speech and demonize the case to suggest that a wealthy, obscure elite has hijacked the political system.

Donald Trump again signaled his contempt for democratic norms by declining to say he’d respect the results of the election. But Democrats, including Hillary Clinton, who stoke mistrust by falsely spinning conspiracy theories of illegitimate, dark forces controlling our system are also to blame for the parlous state of social trust in America.

HKO

At least when Donald Trump expresses lack of faith in the election process, he does not propose to gut the Bill of Rights as a solution.