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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.

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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.

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When Democracy Trumps Liberty

Georgewill

George Will wrote an excellent piece in National Affairs, The Limits of Majority Rule.  My very brief summary and a few comments:

  1. The Progressive pivot of about 1890- but reached in full bore under FDR  is when democracy superseded liberty as the main purpose of the constitution .
  2. The Supreme Court of the modern Progressive era  in its activist mode sought more to affirm the democratic functions of the Congress than the liberty protection functions of the earlier courts.
  3. This supremacy of Democracy was objected to by Lincoln in its use to justify the Kansas Nebraska Act permitting slavery in districts where it was earlier forbidden in the Missouri Compromise. Slavery was extended under the guise of expanding Democracy because the states could now VOTE on whether to permit slavery. How is that for historical irony? Democracy is two wolves and sheep deciding what is for dinner. Liberty is a well-armed sheep.
  4. Democracy is an essential part of our Constitution, but necessarily restrained in its majoritarianism by  the natural and individual rights of the Declaration and the Constitution.
  5. The Declaration is a necessary component of the Constitution.
  6. The expansion of the administrative state to the regulatory and welfare state was supposed to be an expansion of majoritariansim but has ironically been used to expand special interests at the expense of the majority.  The majority  of citizens want Uber but government seeks to protect the cab special  interests- often under the guise of protecting the majority.
  7. There is a tension in a defined continuum between Democracy and Liberty. Perhaps that is the more salient continuum to describe our current debates, rather than left /right, conservative/liberal, socialist/capitalist.

The piece is a bit longer than most that I post, but it is an essay in a major policy publication, not an article in a magazine.  I would not omit a paragraph in it. It is worth a full read.

 

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Democracy and Liberty

From National Affairs George Will writes The Limits of Majority Rule.  It is an excellent summary of the history of the court as it has moved from judicial review to activism.  The success of Progressivism has hinged on the court shifting from upholding constitutional restraints on majority rule to an activist approach to uphold the majoritarianism- what many would call democracy- of Congress.

an excerpt:

The court did not say, but it might as well have said, that majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project. There are, however, two things wrong with this formulation.

First, it is utterly unrealistic and simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in “dishing out” advantages to economic factions. Does anyone really think that, when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city’s residents? Can anyone actually believe that a majority of Louisianans give a tinker’s dam about who sells caskets or arranges flowers?

The second fallacy behind a passive judiciary deferring to majoritarian institutions is more fundamental. It is rooted in the fact that we know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights. These rights therefore pre-exist government. And they include the unenumerated ones affirmed in the Constitution’s Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

 

HKO

The Progressive Era can be summarized as the point in our history where democracy became more important than liberty.  The Founders and Framers clearly valued Liberty much more.

Congress is the instrument of Democracy, but the Court is the instrument of the Constitution which was designed to be a limit to majoritarianism. Democracy is important but without the limits of the Constitution and the proper supervision of the court Democracy breed demagogues and dangerous populism. The Framers understood that democracy and demagogue have the same root.

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The Essence of Restraint

george_will

From National Affairs George Will writes The Limits of Majority Rule. :

an excerpt:

If the sole, or overriding, goal of the Constitution can be reduced to establishing democracy, and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule, then the Court is indeed a “deviant institution.” But such a reductionist understanding of American constitutionalism is passing strange. It is excessive to say, as often has been said, that the Constitution is “undemocratic” or “anti-democratic” or “anti-majoritarian.” It is not, however, too much to say that the Constitution regards majority rule as but one component of a system of liberty.

The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act’s constitutionality bears the heavy burden of demonstrating the act’s unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary’s principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution’s architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

HKO

I highly recommend reading Will’s entire essay