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Legislating Hysteria

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

What people remember of that episode is Senator Edward Kennedy’s infamous speech describing “Robert Bork’s America,” “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Congress is organized under parliamentary rules, and where there are such rules there always will be procedural shenanigans. The filibuster, for example, has not always been used for the most reputable of purposes: The 14 hours Senator Byrd had spent filibustering the Civil Rights Act of 1964 did not prevent him from becoming the Democratic leader in the Senate. The legislative calendar, committee hearings, and such relatively modern innovation as budget reconciliation all have been used in the service of petty politics, which is what politicians do. Complaining about that is like complaining about how wet the water is. But scope and scale and context matter, too. Republican Bob La Follette may very well have been on the wrong side with his 1917 filibuster of a bill that he believed (correctly) would lead the United States to intervene in the Great War, but that was a matter of genuine national and historical consequence. Congress may have erred in abbreviating the usual legislative process to pass the PATRIOT Act, but the sense of urgency was proper and legitimate.

The Bork nomination, on the other hand, was an ordinary piece of government business elevated by Democrats to the status of national emergency in the service of narrow partisan interests. Biden was running for president, Kennedy was running for conscience of the Democratic party, and Byrd, frustrated by Republicans’ lack of cooperation on a number of his spending priorities, had promised: “They’re going to pay. I’m going to hit them where it hurts.” The hysteria and vitriol directed at Bork were of a sort rarely seen since the early 19th century. But they quickly became commonplace.

Normalizing Crisis

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

But the rules of the game are not all there is to the game. What in another context might be called “sportsmanship” is in politics a question of prudence and even of patriotism, forgoing the pursuit of every petty partisan advantage made possibly by the formal rules of the legislative and political processes in deference to the fact that governance in a democratic republic requires a very large degree of cooperation and forbearance. The progress from Robert Bork to Merrick Garland is a fairly obvious story, but there is more to it than that: The increasing reliance upon legislative gimmicks such as omnibus spending bills and retrofitting legislation to fit with the budget reconciliation process, the substitution of executive orders and open-ended regulatory portfolios (“the secretary shall . . . ”), the prominence of emergency “special sessions” in the state legislatures, the absence of regular order in the legislative and appropriations process — all are part of the same destructive tendency. Procedural maximalism in effect turns the legislative system against itself, substituting the exception for the rule and treating every ordinary item of business as a potential emergency item.

The Democrats did not filibuster Bork’s nomination — at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction. As always, judgment matters: One may appreciate that the existence of the filibuster is prudent and desirable without wishing to see it used on every potentially controversial nomination or piece of legislation. It is perfectly acceptable to believe that Robert Bork had the wrong idea about the Constitution, but it is another thing entirely to treat as a national crisis the fact that a judicial nominee has ideas at odds with Joe Biden’s ideas — or with Joe Biden’s ambitions.

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.