Center for American Greatness • Post • Progressivism • The Courts • The Left

Answering the Left’s Campaign to Delegitimize the Courts

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Elie Mystal—an Above the Law windbag—mercifully has taken a break from comparing Republicans to Nazis and blogging cringey clickbait about seminude Harvard Law Professor Alan Dershowitz to shriek instead about how President Trump and Senate Republicans are “pack[ing] the courts with ultraconservatives.”

In a rambling screed at The Nation, Mystal frets about some dark fruit that has been produced by President Trump’s “illegal reign,” namely, “far-right legal arsonists” have helped install, at last count, 123 “torture advocates, LGBTQ antagonists, rape apologists, Islamophobes, . . . Confederate-monument defenders [and] anti-abortion fundamentalists” to the federal bench—with more on the way.

Mystal’s rhetorical drive-by—the piece attacks all current Trump judges but focuses especially on the “worst of the worst,” ominously dubbed the “Seven Injustices”—is but the latest salvo in a months-long progressive campaign to delegitimize the federal courts, particularly the Supreme Court.

Because if progressives don’t own it, it’s illegitimate, of course.

As usual, the Right is blind to an emerging political and cultural trend and so is doing nothing to mobilize an effective political response. If history is any guide, if the Right ever does respond, it will be ineffectually —too little too late—and all that will remain is to write the think pieces lamenting how unfair it all is.

Failure to act now promises dire consequences: the nullification of a key success of the Trump Administration—confirming life-tenured, rule-of-law, textualist-originalist jurists to the federal judiciary—and the further erosion of the integrity of our constitutional republic.

Always Political
At the behest of their radical base, which is deeply disillusioned with Article III of the Constitution now that the courts are no longer reliable agents of History, many Democratic presidential candidates have offered various plans to “fix” the Supreme Court, and sundry pundits and intellectuals regularly concern-troll about the court’s legitimacy.

Here’s what is really going on: This is a political hatchet job to delegitimize the federal courts because they are not all-but-guaranteed to ratify the radical agenda of the progressive, social-justice Left: green fanaticism, Marxist deconstructionism (of late, that of sex and gender), multiculturalism, anti-Americanism through political correctness and social media-sponsored censorship, and socialism.

But the problem is not that politicians, pundits, and parts of the broader public are attacking the courts politically in an attempt to steer their rulings in a direction more palatable to their broader agenda; ’twas ever thus. The problem is the Right is sitting on its hands, apparently unaware that the progressives’ ferocious assault demands a response.

The courts are inescapably subject to politics because they are, by design, subject to the political branches—“advice and consent” on the front end and (theoretically) impeachment on the back end. And the members of those political branches, in turn, are accountable, ultimately, to the sovereign American people—from whom all legitimate government must derive its authority.

A few examples will suffice to show that the judiciary is not some pure haven of legal analysis and that judicial politics has been part of American political life since the Founding:

  • Congress has twice in our history passed jurisdiction-stripping legislation in response to judicial decisions that it disfavored: one revoking the Supreme Court’s appellate review of a habeas corpus decision in the aftermath of the Civil War (Ex parte McArdle) and a second restricting the power of inferior federal courts to issue injunctions in labor disputes (Lauf v. E.G. Shinner & Co.);
  • After Marbury v. Madison, the Jeffersonian Democratic-Republicans enacted legislation that prevented the Supreme Court from meeting for over a year and abolished the nationwide circuit court system set up by the Federalists during their last days in office (thus throwing Federalist-appointed judges out of office)—and the Supreme Court upheld that latter piece of legislation, even though it resulted in life-tenured judges’ losing their seats;
  • After the Supreme Court handed down its decision in McCulloch v. Maryland, Chief Justice John Marshall anonymously responded via out-of-court newspaper articles to the pointed, ideological attacks of two anonymous state-court judges, who had penned their own extrajudicial writings;
  • Part of the 1860 presidential campaign featured attacks on the Supreme Court (which had issued its disgraceful Dred Scott decision in 1857), and after Abraham Lincoln’s election, leading papers such as the Chicago Tribune and the New York Times supported plans to limit the independence of the judiciary;
  • Impeach Earl Warren” billboards dotted the landscape in the 1950s and ’60s in an attempt to pressure the Warren Court to back away from its nonoriginalist judicial activism, and, arguably, Franklin D. Roosevelt’s threatened 1937 court-packing plan was successful in pressuring the Supreme Court to lay supine before the implementation of the New Deal.

What we’re seeing from Democrats nowadays is just more of the same: a series of political attacks that must be met with a political response.

But that response will have to come from the political branches and right-leaning media, as well as those who generally support President Trump’s judicial nominees, because we cannot expect judges in today’s system to defend themselves. What Marshall did post-McCulloch was a highly unusual maneuver from an exceptionally gifted jurist and political operative, during a different era in history.

As Hamilton wrote in Federalist 78, “The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Judges rely on public support and the protection of the political branches for their power and legitimacy; if we do nothing to defend Article III against this barrage, its power will be fatally undermined—and we will all be the worse for it.

The Founders were originalists, but the Progressive Era fomented a jurisprudential revolt in constitutional interpretation, a revolt that wrongly spurned the role of originalism, textualism, popular sovereignty, and the natural law in the interpretive enterprise. The courts as President Trump and Senate Republicans are molding them are good and worth defending to the hilt, and the Right should not be afraid to engage in full-throated political defense of them, even in the face of a Left that, in its delusional way of thinking, posits that the judiciary is its own exclusive property.

We’ve known for decades now that as the courts go, so goes the country—for better and for worse. It’s time we start acting like it.

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First Principles • History • Law and Order • Post • The Courts

Liberalism, Originalism, and the Constitution

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No one would mistake the Supreme Court’s liberal justices for adherents to the concept of “originalism,” or the belief that one should consider—first and foremost—the Founders’ intent when ruling on constitutional issues. And yet their opinions in the Maryland “Peace Cross” case suggests that they, at least implicitly, support the idea.

In American Legion v. American Humanists Association, the court upheld Maryland’s Bladensburg Cross against the claim that its presence on public property violates the establishment clause of the First Amendment. Writing in dissent, no less a figure than Justice Ruth Bader Ginsburg—the Notorious RBG and hero of the American Left—turned to the thought of the Founders in order to find the meaning of the establishment clause.

According to Ginsburg, the establishment clause intends to create a “wall of separation between Church and State.” Like generations of liberal judges before her, Ginsburg here relies on Thomas Jefferson’s understanding of the purpose of the establishment clause, expressed in his famous letter to the Danbury Baptists. Ginsburg and her predecessors additionally lean on James Madison’s arguments in the Memorial and Remonstrance, written against a proposed system of state support for religion in Virginia.

As it happens, this is a kind of originalism. It’s just that it’s a sloppy and tendentious form of originalism.

The original meaning that conscientious judges should seek is the meaning as it was understood by the public at large when the Constitution was ratified, and not the personal political views of selected Founders who, we should be reminded, were not sovereigns. Nevertheless, it is worth noting that no less a liberal giant than Ginsburg is willing to use at least some form of originalism in an effort to find the meaning of the Constitution.

Nor is this an isolated case. In the previous decade, when the court grappled with the meaning of the Second Amendment in District of Columbia v. Heller (2008), both the conservative and liberal justices turned to the Founding generation to understand the meaning of the “right to keep and bear arms.” Justice Antonin Scalia and the conservative majority found that the weight of the historical evidence supported an individual right to keep and bear arms, while the liberal dissenters disputed this conclusion.

Notably, however, the “living Constitution”—which some liberal commentators treat as the common sense alternative to the much-derided originalist line of inquiry—made no appearance in Heller. Justice John Paul Stevens and the liberal dissenters never suggested the meaning of the Second Amendment should be interpreted in light of today’s values. They mounted no attack on originalism itself as a mode of interpretation. Instead they countered with their own originalist investigation, looking at the same evidence and holding that it supported the view that the Second Amendment aimed merely to protect the state militia.

As well they should. Constitutional originalism provides a nonpolitical standard for judges, one that permits them to think beyond their own policy preferences. Its liberal detractors may claim that it is just a clever disguise for their own political judging (“Originalism is a scam,” according to one recent ThinkProgress headline), but their argument is a weak one.

Anyone who studies the early history of the American Republic can see that originalism is not some novel invention of modern conservatives but a long-established and venerable approach to constitutional interpretation. In his celebrated opinions for the Supreme Court, John Marshall—the “Great Chief Justice”—sought the original meaning of the constitutional provisions on which he was called to rule. Certainly Marshall never suggested—unlike the modern purveyors of the “living Constitution”—that the meaning of constitutional provisions could change over time or might be imbued with new meaning by the jurists of the present generation.

James Madison—the “father of the Constitution”—expressly endorsed originalism as a method of constitutional interpretation. In an 1824 letter to Henry Lee, Madison held that in seeking a “just construction” of the Constitution we must turn to “the sense in which the Constitution was accepted and ratified by the nation.”

“In that sense alone,” Madison added, “it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

Small wonder, then, that even liberal justices sometimes draw on originalist traditions. In light of that fact, liberal pundits ought to be candid enough to admit that originalism is not some cynical conservative expedient but a legitimate method of constitutional interpretation.

Perhaps they can go a step further and ponder the following question: If originalism is good enough for some areas of constitutional inquiry, why isn’t it good enough for all of them?

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America • Center for American Greatness • Donald Trump • Immigration • Law and Order • Post • The Courts

Is Chief Justice Roberts the Jim Comey of the Supreme Court?

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American Conservative Union chairman Matt Schlapp last week called for Chief Justice John Roberts’ impeachment over his vote with four liberal justices to deny the Trump Administration a total victory on whether the Census could include a question on citizenship.

Schlapp, whose wife Mercedes is the Trump White House communications director, goes too far—though he may have tapped into an understandable conservative sentiment. I don’t believe Roberts is quite the Jim Comey of the Supreme Court, yet he seems to be asking for the label. Comey’s troubles surfaced when he tried both to condemn and absolve Hillary Clinton of criminal security breaches. All the while, he self-righteously claimed to cleave to a higher loyalty. But that loyalty seems to have ensnared him in an even more insidious conspiracy, which the Justice Department is now investigating.

For his part—and the comparison with Comey goes only so far—Roberts in trying to depoliticize a case ended up protecting partisanship within the government, that is to say within the bureaucracy. He had done something similar in his 2012 opinion on the Affordable Care Act—finding its mandate a constitutional tax after declaring the law unconstitutional based on the main commerce clause arguments presented. In allegedly taking politics out of his opinion Roberts also removes the Constitution. (To be fair, he also enabled Republicans to gain majorities in Congress that should have repealed the ACA, but those majorities failed to it.)

As President Trump blasted the partisan actions of various judges, the chief justice shot back, claiming there are “not Obama judges or Trump judges, Bush judges or Clinton judges.” Trump replied, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” 

In the current case, the court unanimously agreed that a question concerning citizenship could be asked in the 2020 census. Against the liberal justices, it also brushed aside the lower court’s mischief in weighing the musings of Commerce Department bureaucrats over Secretary Wilbur Ross. But the crucial part of Roberts’ opinion in Department of Commerce v. New York contended that the secretary of commerce, who oversees the Census Bureau, had presented “pretextual,”—that is, deceptive—reasons for adding the citizenship question. Thus the lower court should reconsider its decision in light of the Supreme Court’s ruling.

Critics had charged political motives for adding the citizenship question and thereby lowering the count of noncitizen, largely minority persons. The idea is that asking, for example, Central American immigrants about citizenship would discourage them from answering and thus produce an undercount of such persons, and the Constitution in Article I, section 2 calls for a count of all persons, not just citizens. Defenders of the citizenship question point out that suspicion of census counters is not confined to immigrants or minorities.

While Roberts doesn’t buy this bureaucrat’s argument, he also accepts the argument that the Commerce Department’s Voting Rights Act enforcement is a pretext—a dishonest claim that covers up another, possibly illegitimate claim. His argument, endorsed by four liberal justices, makes the reform of the administrative state all the more difficult. The arguments in this case rest on whether we should assume the legitimacy of the administrative state.

Fortunately, Justice Clarence Thomas explains the court’s error—and more important its implications for containing bureaucracy, unelected government, and government by elites. His incisive opinion justifies the citizenship question and defends the ability of the government to control its bureaucrats and to prevent control of the government by whim, partisanship, corruption, or bureaucratic inertia.

Thomas shows how the chief justice’s opinion borders on surrendering to the worst of the administrative state. As Thomas observes, “the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

Roberts unnecessarily complicated the issue—how can counting the number of citizens cause a dispute? Just as a nation can’t exist without borders, no more can it know itself without having a count of citizens.

“Our only role in this case,” Thomas maintains, “is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision . . . . The Court, however, goes further. For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

Unless the mischief is contained to this decision, Thomas fears, it will spread with disastrous consequences.

“Opponents of future executive actions can be expected to make full use of the Court’s new approach,” Thomas writes. “Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them.”

Moreover, even if the elite’s plot to prevent a count of citizens, a part of the left’s open-borders strategy, is ultimately beaten back, “the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

The court’s census decision is not only, as Thomas charges, “a departure from traditional principles of administrative law.” By shrinking from confronting the charge of political bias, the chief justice affirms the power of the administrative state. For only political fury of informed citizens can corner this savage beast. Thomas has raised these points in many opinions throughout his career and in particular in the last few weeks. These opinions will require further elaboration.

Of course this typical Thomas intellectual honesty has been met by the partisan sneers of the Washington Post editorial board, among other factotums of the administrative state.

For calling out the ineptitude of lower court, the Post fumed “Mr. Thomas’s ill-considered language undermined the defense of the judiciary that the chief justice had previously attempted to mount. And to what end?”

The smarminess went even further. “For Mr. Kavanaugh and Mr. Gorsuch to join such an opinion was a lapse in self-awareness on their part, given how readily Democratic partisans accuse them of bias in favor of the president who appointed them—Mr. Trump.” It’s hard to tell which justices should be more insulted by such tripe.

The Post would thereby recruit the chief justice to its own partisanship. Roberts should take care to legitimate such calls, which he avoided doing in the partisan reapportionment case.

As the court has been in truth politicized for so much of its history, it is impossible to keep politics out of it. Can the chief justice be naïve about this? Is he so steeped in legal mechanics that he doesn’t appreciate the democratic context of the judicial system, and the abuse the courts have dealt the principle of government by consent?

In this crisis, which Trump clearly recognizes, only the clarity of political division will give judicial decisions their republican legitimacy. That is the point of Lincoln’s great speech on Dred Scott. The Constitution is too important to leave to justices.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

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Donald Trump • Immigration • Law and Order • Post • The Courts

Roberts vs. Trump: The Supreme Court Piles on the President

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The difficulties President Trump faces in carrying out his agenda are massive and were underscored again by the last case decided this term by the United States Supreme Court. That case, Department of Commerce v. New York, presented a challenge to the Trump Administration’s plan to add a question about citizenship status to the 2020 census form.

The U.S. Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” These days, the census has at least two important effects. One is that the enumeration of persons residing in the United States determines the apportionment of representatives in the House, and the other is that it determines, to a great extent, the amount of federal funds that will be expended in each state.

The census, then, is a means of allocating political power and federal government resources. If there is an undercount, a state may end up losing power and wealth. Fearing that asking about citizenship status will result in an undercount of people living here illegally, Democrats challenged the right of the government to secure that information as part of the census. It is no secret that undocumented foreign nationals tend to cluster in urban areas, most often under Democratic Party control. So blue states feared the results of returning the citizenship question to the census.

As they have done with many policies of this administration, a coalition of progressives formed and brought actions challenging the citizenship question, alleging, among other things that it was an attempt at unlawful discrimination on the part of Commerce Secretary Wilbur Ross. Finding a judge sympathetic to their views, as they are too frequently able, they were successful in a federal trial court in one of the bluest of the states, New York. Similar actions are underway in other federal courts, but it was hoped that the Supreme Court would resolve the issue one way or the other before the printing of the 2020 census forms, which could take place later this year.

It was not to be. In an opinion of Byzantine complexity by Chief Justice John Roberts, the court acknowledged there was actually no legal impediment to asking the citizenship question in the census questionnaire. But because the Administrative Procedure Act enabled judicial review of the decisions of the secretary of commerce, and because the court suspected Ross had not been candid with regard to his motives for seeking the citizenship question, “meaningful judicial review” could not be had. Therefore, wrote Roberts, it was necessary to forbid the addition of a citizenship question to the census until further examination of the secretary’s motives could be accomplished in the lower courts.

Ross, whose department was charged with conducting the census, maintained that the citizenship question was added at the request of the Department of Justice, so that that that department might better enforce the Voting Rights Act (VRA)—the notion being, apparently, that if the census revealed many citizens were not exercising their right to vote, this might be corrected by appropriate action.

This, according to the Supreme Court (and the lower court) was a “pretext” (a nice way of saying “a lie”), since Ross had declared soon after assuming his office that he would add that question to the census, presumably because he believed it would aid in determining the actual scope of the nation’s problem of illegal immigration.

The “pretextual” nature of Ross’s motives, for the Supreme Court majority, precluded effective judicial review. That this result was outrageous was brilliantly communicated in a dissenting opinion by Justice Clarence Thomas, further solidifying his reputation as the greatest defender of the Constitution and the rule of law currently sitting on the court. The key provisions of Thomas’s opinion are worth quoting in full:

For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the Court declares the Secretary’s memorandum “pretextual” because, “viewing the evidence as a whole,” his explanation that including a citizenship question on the census would help enforce the Voting Rights Act (VRA) “seems to have been contrived.” . . . The Court does not hold that the Secretary merely had additional, unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision.

The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).

Elaborating, Thomas observed that Roberts’s majority opinion, joined by the Supreme Court’s four liberals, “engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive.”

There is a chance this case will return eventually to the Supreme Court, and the citizenship question will be added to the census, but it may not happen in time for the next count. What Thomas reminds us, however, is that somehow John Roberts has been persuaded to join progressives and the enemies of this administration in erecting hurdles no other president has had to surmount.

Just as the Russia hoax involved an unprecedented attempt by the Obama Administration to employ our intelligence services wrongly to conduct political surveillance and seek to undermine candidate and later President Trump, so the Roberts Court has now made the president’s task of implementing policy more precarious in an unprecedented manner.

No wonder, then, that following this decision President Trump tweeted “Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020.” He’s right, of course.

John Roberts, who, in his confirmation hearings, boldly claimed that justices were apolitical “umpires,” belied this notion in his majority opinion, just as he did in upholding Obamacare in 2012, with an equally contrived opinion declaring that law—which clearly violated Congress’s commerce clause powers (as Roberts himself admitted)—could be sustained as a constitutional exercise of Congress’s taxing power. In the Obamacare case, Roberts seriously undermined the 10th Amendment, which was thought to guarantee that the federal government remain one of limited and enumerated powers. Thomas’s dissent in the census case, just as he had in the Obamacare case, makes clear that Roberts engaged in judicial legislation, and, in effect, put the federal courts in a position to frustrate countless policies of the executive.

I have written at length elsewhere about how our law schools for two generations have encouraged the development of courts that make it up as they go along, and how that behavior has endangered the sovereignty of the American people themselves. We now have one more jarring example of this behavior that is so detrimental to the rule of law. Only if President Trump succeeds in putting more true conservatives like Thomas on the court is there any hope of returning us to self-rule and the framers’ conception of the judicial role.

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America • Law and Order • Post • Progressivism • The Courts

Crime Without Consequences

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The latest and greatest cause du jour is criminal justice reform—a push to claw back the “tough on crime” policies of decades past.

In pursuit of that agenda, scores of advocacy groups have masqueraded as public policy analysts presenting their predetermined conclusions that the “system” is broken as unbiased assessments based on data and experience.

The latest is the Council of State Governments (CSG), a nonpartisan, nonprofit think tank whose Justice Center arm studies criminal justice reform. In a recently released study, “Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets,” CSG concludes that prisons are overloaded with parolees and probationers.

CSG’s press release states:

45 percent of state prison admissions nationwide are the result of violations of probation and parole supervision—either for new crimes or breaking supervision rules…[and] one-quarter of prison admissions are the result of technical violations, which are often minor offenses, such as failed drug tests or missed curfews.

National Public Radio (NPR) reported, “the majority of these violations are for ‘minor infractions, such as failing a drug test or missing a curfew. Those so-called technical violations cost states $2.8 billion every year, the report says.”

But the underlying data and the footnotes to CSG’s own report belie those bold, topline claims.

A few necessary corrections and clarifications are in order.

  • “State prison” includes county jails (which aren’t state prisons, at all) and most sentences are short stays.
  • Parole and probation are distinct, but all terms are mutually agreed upon conditions to maintain the offender’s liberty and are often tailored to their risk and history.
  • Prior to being re-incarcerated, both parolees and probationers receive revocation hearings, administered by a neutral third-party.
  • Technical violations are not necessarily minor and often include a re-offense or serious abrogation of their release terms that threatens the public safety.

So little of what CSG says is true it almost would be laughable—if not for the tragedy that some state lawmakers may use the report to alter public safety laws to favor criminals.

The CSG report repeatedly says that violators are admitted to “state prison” which is not an accurate description of the facilities they enter and implies an extended length of sentence of parolee and probationer violators. But buried in a footnote, the CSG acknowledges:

“Prison” includes county jail if the county was reimbursed by the state for a person’s incarceration, which occurs in some, but not all, states. Supervision violations may include revocations (i.e., unsuccessful terminations of a supervision and completion of a sentence in prison or jail) or short-term sanctions (i.e., probation or parole jurisdiction is maintained and the person is incarcerated for a short period of time in prison or jail).” (Emphasis added.)

The issue is further explained in CSG’s methodology section:

[Total admissions to Prison:]

  • Include people sentenced to a term of incarceration regardless of sentence length (include jail sentences in unified systems). This may include people held in private facilities as well as county-run facilities, provided they have been sentenced or formally sanctioned by a court or supervision authority and their incarceration is state funded.

  • Include people incarcerated for short sanctions in state-funded custody (may include county jails) while on probation or parole/post-prison supervision. 

It is important to note that jails, typically, detain inmates for less than one year, while prisons do so for a year or longer. So, “prison” doesn’t mean prison, according to the CSG itself. It is just useful shorthand to grab the attention of smug advocates and lazy journalists.

Another important distinction glossed over by the CSG report is the difference between parole and probation. Both are the result of criminal convictions (felony and/or misdemeanor) but only probation is a sentence in and of itself (you can remain out of prison or jail if you adhere to certain rules). Parole, on the other hand, is a privilege extended to sentenced inmates for good behavior behind bars. Both categories (probationers and parolees) pledge to adhere to given rules to maintain their liberty. The terms are a legal agreement with consequences for violations (i.e., admission to prison or jail for a specified time).

Yet another problem is CSG’s characterization of technical violations as “minor offenses, such as failed drug tests or missed curfews.”

This is not an accurate description of technical violations and how they are enforced. It portrays probation and parole officers as overbearing parents revoking the freedom of otherwise compliant offenders for missing their bedtime.

In reality:

  • Offenders agreed to the terms of probation or parole in exchange for their liberty.
  • The terms are usually tailored to the offender’s history and crimes (e.g., no drugs or alcohol for an addict) or for the safety of past victims (no contact with a former spouse) or the general public (no possession of weapons).
  • Parolees and probationers receive revocation hearings in front of a judge or hearing officer. The decision is not made arbitrarily by a single parole or probation officer. Many states’ hearings include “improvement plans” to avoid re-incarceration through “graduated sanctions” based on risk-level and the severity of new violations.
  • Most importantly, CSG acknowledges a crucial data limitation that all but eviscerates their conclusion that “minor” technical violations are the root cause of revocation. Buried under CSG’s flashy graphics, a tiny asterisks notes: “Whether an incarceration is the result of a new offense or technical violation is often difficult and problematic to delineate, even in states with available data. Most states do not consider a supervision violation to be the result of a new offense unless a new felony conviction is present, meaning technical violations may include misdemeanor convictions or new arrests.” [emphasis mine]

The whole report is so rife with data errors and mischaracterizations that it is difficult to identify how the data was repurposed and interpreted.

CSG claims that the state with the supposedly highest revocation rate, Idaho, holds 5,298 inmates on a given day due to revocations. Such revocations account for 69 percent of Idaho’s “prison admissions” and 62 percent of its overall prison population. Curiously, the prison admissions breakdown that is given is: 1) probationers—new offense (20 percent), 2) technical probation violators (13 percent), 3) parolees—new offense (21 percent) and 4) technical parole violators (15 percent). Just below the fancy widget, a blaring “Data Alert” warns that the state did not provide CSG with any of that data or related costs.

Furthermore, CSG claims that 22 percent of the overall Idaho prison population is comprised of parole violators. But in fact, the Idaho Department of Corrections’ own report identifies only 657 parole violators as housed state prisons, re-entry facilities, or county jails in February 2018. With 8,456 total inmates in Idaho’s control that month, parole violators did not account for 22 percent of the state’s prison population as CSG contends—the figure for parole violators in prison is closer to 8 percent. Even CSG reported in 2015 that Idaho’s violators in prison population was 40 percent not the 62 percent the latest report claims. That did not stop CSG from populating their charts and shaming Idaho as an outlier.

So, let’s summarize the study’s take-aways: facts are irrelevant, costs to society and victims are secondary, and consequences and personal responsibility are cruel (to convicted criminals). It is of no consequence for parolees or probationers to use illegal drugs or possess firearms while on supervision. No accountability is necessary for sympathy, not sanctions will cajole inveterate criminals into good behavior.

Let me help rewrite that press release opener:

A new nationwide study measures the cost to the criminal but ignores the cost to victims of crime and to public safety.

Nearly half the people convicted of crimes in America who were given the opportunity to avoid incarceration instead chose to break their word and the law. They were held accountable for their initial and subsequent offenses after a fair hearing.

An alternative is already working with fewer carrots (leniency) and more swift and reliable sticks (sanctions) for violations.

That alternative is Hawaii’s HOPE program, which implements

a swift and commensurate sanction for each probation violation. Probation, as has traditionally been implemented, usually allows probation violations to accumulate since there are few sanction alternatives available to probation officers and judges apart from a probation revocation. Once the probationer accumulates enough violations to forfeit probation, the probationer usually is sent to serve the original prescribed prison sentence. HOPE, on the other hand, involves delivering an immediate, measured and proportionate sanction for each violation as it occurs. Each probationer entering HOPE is made aware of the program expectations, including that there will be an immediate consequence for every violation.

According to studies, HOPE participants “experienced fewer returns to prison on average: 13 percent for those who only served HOPE probation; 15 percent for those who were transferred into HOPE from conventional probation; and 32 percent for those who served conventional probation only.”

Hawaii’s model has been attempted elsewhere with mixed results due to implementation problems but continues to offer its claim: hope for compliance and keeping offenders out of jail and prison: “[A rigorous study] also showed significant differences in compliance and recidivism for HOPE probationers, with large differences in positive drug tests (13 percent HOPE versus 46 percent among those in the control group) and new arrests (21 percent HOPE versus 47 percent among those in the control group).”

The larger conclusion for the parole and probation system isn’t that leniency works as much as hard, fast, and consistent accountability does. We would all be better off if advocates dressed up as unbiased experts bothered to apply such rigor to their own work.

Photo Credit: Sonkar Shubham/EyeEm/Getty Images

 

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Conservatives • Law and Order • Post • Progressivism • The Constitution • The Courts • The Left

The Way Out of Our Judicial Impasse Is Through It

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For more than half a century, as leftist judges have preempted or nullified our efforts to govern ourselves, conservatives have staked much on the appointment of judges who would follow the law rather than legislating or administering from the bench. And indeed, the number of such judges has been growing for a generation.

But since the 2016 election, it has become clear that merely appointing good judges cannot stop what the bad ones are doing, as leftist federal judges continue to strike down one after the other of the Trump Administration’s initiatives, as well as conservative state laws.

Even if a majority of the Supreme Court were to overrule every district court judge’s usurpation once an appropriate case reached it, leftist judges would still be a major brake on one side of American public life. Until conservatives somehow stop this judicial malpractice, all the work they do to elect whomever, to pass whatever laws, to appoint more good judges, is guaranteed to be undone by some bad judge putting his seal on some leftist group’s brief.

Nor can honest, nonactivist judges provide a counterweight on the other side of political conflict.  If conservative judges were the mirror image of leftist ones, there would be a cadre of them ready to invalidate the next leftist president’s every move, as well as every law and practice of California’s and other blue states’ governments. But there is not such a cohort in waiting.

A Tale of Two States
Red states over the past two years have been passing laws restricting abortion, while blue states have been passing laws expanding “abortion rights,” including measures that would allow killing babies outside the womb. The red state restrictions are practically null and void because leftist judges have pronounced them so. Because no judge has done the same, the blue state sanctions of infanticide stand.

There is a fundamental asymmetry between the Right’s view of law, and the Left’s. For conservatives, law is the Constitution as written, as are the laws lawfully passed under it, because these proceed from elections by the people. So are decisions by lawfully appointed judges.

For the Left, law is what meets theirs and their community’s best judgment.

The asymmetry between the Left’s legal culture and that of conservatives guarantees the permanent submission of the conservative side of American life. Conservatives respect the rulings of judges unless and until the Supreme Court invalidates them, and largely respect the Supreme Court’s rulings regardless of their content. They do so because of the link, however tenuous, these institutions have to the will of the people. Leftist judges—and not only judges—have the opposite of respect for the people. For them, the laws are what they say they are. Laws R Us!

Alternative Resolutions
If the conservative idea of American life is going to survive, it must either disable the Left from exercising tyranny through judges or match the Left’s attitude toward laws and judges—something is law only so long as we agree with it.

Disabling the Left’s judicial weapon is a merely political problem. Nothing in the Constitution gives any judge—including the Supreme Court itself—the power to invalidate any law or executive action, much less to set national policy. “Judicial review” grew from the fact that the Supreme Court (and derivatively other Article III judges) being a co-equal branch of government, may refuse to affirm any law which it finds to be in conflict with the Constitution.

But the existence of the inferior federal courts, their rules and jurisdictions are creatures of subordinate legislation, not the Constitution itself—as is the Supreme Court’s appellate jurisdiction. Under the Constitution’s Article III, section 2, mere law can restrict a district court’s powers to the case at hand in its own district and eliminate its dictation of policy. Conservatives can and should restrict the courts to their proper role.

Taking matters into our own hands is the other alternative. Abraham Lincoln’s comments on the Dred Scott decision set a standard: while he did not dispute the court’s affirmation of Scott’s slavery, he refused to take its decision as a rule for any other case.

Defying the reach of a federal court ruling—even one of the Supreme Court’s, never mind that of a district court—is within everyone’s power. Alexander Hamilton had made that point in Federalist 78: the judiciary’s fundamental power is neither more nor less than the power to persuade. You may be otherwise persuaded. Hamilton is clear that there is no constitutional duty to obey the courts—certainly not on policy.

Andrew Jackson applied that principle even to the Supreme Court’s decision in the specific case of the Bank of the United States in 1832: “John Marshall has made his decision; now let him enforce it!” There is no constitutional reason why any president, or governor, should forbear from carrying out a law or an executive decision just because a federal district judge’s opinion is that it violates some standard, The president or governor has his own opinion. In the final analysis, all depends on executive power, which, in turn, depends on popular support.

The Work of the People
Single district judges who have “struck down” so many of the initiatives on which President Trump was elected have framed the public issue: who rules? Were Trump to defy them, Jackson-style, his argument would be “the voters rule,” not these individuals’ discretion. Their only answer would be that their discretion is the rule of law. This is unconvincing.

Politically based defiance may also counter judges’ interference with democracy at the state level. In 1957, President Eisenhower sent federal troops to enforce a court order pursuant to Brown v. Board, to admit black students to Little Rock Central High School. This outcome was foreordained. Neither side meant to shoot. The presidency’ prestige was at its height, wielded by World War II’s recent victor.

In today’s deeply divided country—as central institutions are widely discredited—no president, regardless of his opinion would send federal troops to enforce a court order against opposition. If, for example, any state law were to ban abortion, the Army would not shoot the state’s police, with the cameras rolling, to enable an abortion. Nor can we actually imagine the reverse.

The only way out of our political impasse is through it. Judges cannot unite us again as a people. That remains the work of the people and their elected representatives.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

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Administrative State • America • Center for American Greatness • Energy • Environment • Post • Technology • The Constitution • The Courts

The Climate Case of the Century

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Twelve years ago, the U.S. Supreme Court ruled in Massachusetts v. EPAthat greenhouse gases are air pollutants covered by the Clean Air Act. The decision in effect gave the Environmental Protection Agency massive additional regulatory authority. This year, another landmark climate case appears headed for the high court: Juliana v. United States. This time, the stakes are even higher.

The Ninth U.S. Circuit Court of Appeals on Tuesday will hear arguments in Portland from both sides. The hearing was preceded by a wave of well-funded protestsacross the United States in support of the plaintiffs, who are a group of 21 children and teenagers who were recruited in 2015 from places around the country deemed particularly vulnerable to climate change.

While environmental lawsuits have been around for 50 years, “climate rights” and climate liability lawsuits blaze new legal territory. As “60 Minutes” explained in a favorable story in March, the young plaintiffs allege the U.S. government’s use of fossil fuels is “causing climate change, endangering their future and violating their constitutional rights to life, liberty, and property.”

The prospects for this case to reach the Supreme Court and provoke a strong ruling in favor of the plaintiffs cannot be ruled out. Over the past few decades, the fossil fuel industry has embraced the climate change activists. The industry has determined that challenging the basic premises of climate change activists is no longer good for business.

Rather than continue to fund unbiased scientific inquiry, the fossil fuel industry recognizes that if it is harder to extract oil and gas, the price of oil and gas will rise, increasing their profits. They also recognize—unlike every climate activist on earth, evidently—that it is impossible to pursue economic development without fossil fuels. Therefore, their industry will continue to thrive no matter what climate activists accomplish through litigation or legislation.

Government Has a Tough Case to Make
A similar pattern of appeasement describes the federal government’s approach to climate activism over the past 30 years. Across Republican and Democratic administrations, the federal bureaucracy, usually staffed by individuals who were themselves climate activists, generated mountains of correspondence that will be used to allege the government knew that fossil fuels were causing climate change and did nothing to stop it.

This evidence has left the defendant, the federal government, with a much tougher case. The plaintiff’s attorneys have accumulated documents going back decades that they will offer as proof of liability.

Whatever the fossil fuel industry’s motivations were—protecting their public image, taking the path of least resistance, short-term thinking, or cynical, profit-oriented stratagems—they now face consequences beyond anything they may have imagined. The plaintiffs in Juliana want the court to compel the federal government to develop a plan to reduce atmospheric CO2 concentrations to 350 parts per million or less by 2100. Global CO2 concentrations are currently around 400 PPM.

This is an impossible goal. Not difficult. Not tough. Impossible.

Critical Questions
What will decide the case in the Supreme Court, however, is not the feasibility of this remedy. Rather, the case will hinge on whether the U.S. Constitution guarantees the right to a healthy planet; do CO2 emissions from burning fossil fuel cause an unhealthy planet; and if so, did the U.S. government know this and do nothing?

The case could turn on any one of those questions, but the second one—do CO2 emissions caused by burning fossil fuel cause an unhealthy planet—is the most critical to future policy.

The “endangerment finding” in Massachusetts v. EPA was a missed opportunity for climate skeptics to have an honest debate on the entire scientific basis of climate activism. The failure of climate skeptics to successfully argue their position in Massachusettshas created a powerful precedent that favors the plaintiffs in Juliana.

Nevertheless, if and whenJuliana reaches the high court, it would be a mistake for the federal government’s attorneys to focus primarily on the question of whether or not U.S. citizens have a constitutional right to a healthy planet. Instead, they could use the opportunity to challenge every scientific premise of the climate activist lobby.

For example:

What proof is there that anthropogenic CO2 is the primary contributor to global warming? What about changes in solar cycles, other astronomical variables, the multi-decadal oscillations of ocean currents, the dubious role of water vapor as a positive feedback mechanism, the improbability of positive climate feedback in general, the uncertain role (and diversity) of aerosols, the poorly understood impact of land use changes, the failure of the ice caps to melt on schedule, the failure of climate models to account for an actual cooling of the troposphere, the credibility of climate models in general, or the fact that just the annual fluctuations in natural sources of CO2 emissions eclipse estimated human CO2 emissions by an order of magnitude?

What proof is there that global warming is occurring at an alarming rate, that it won’t stabilize, or that it isn’t actually causing more good than harm in the world by stimulating the expansion of the world’s forests, increasing agricultural productivity, increasing global precipitation, and reducing deaths from freezing?

What if species loss is overstated, happening for other reasons, or countered by adaptation? What if anthropogenic CO2 is the reason the Anthropocene era hasn’t already been catastrophically obliterated by what is now the past-due next ice age?

What if the environmental consequences of a dramatic reduction in CO2 emissions actually would be worse than alleged global warming? What are the cumulative environmental impacts of carbon-neutral solutions such as the heat island effect of hundreds of thousands of square miles of photovoltaic panels, or millions of square miles of biofuel plantations? What are the wildlife impacts of these solutions, along with others such as millions of large wind turbines?

What about the environmental impact of mining for millions of tons of rare earth minerals and other extractive nonrenewable resources in order to construct these massive energy projects? What about the environmental impact of recycling and reprocessing these renewables assets which have useful lives of only 25-50 years?

These are some of the scientific arguments that the government should bring to bear when Juliana v. United States reaches the U.S. Supreme Court. But decades of cowardice and opportunism by members of industry and government who knew better make it harder than ever to make those arguments.

Appeasement and Unwitting Nihilism
The choice was made a long time ago by most of these special interests to appease and accommodate the climate activists. As a result, the arguments they ought to be making have been banished and toxified for so long they have become heresy in the eyes of virtually the entire mainstream and online media along with a generation of America’s youth.

Which brings us back to the absolute impossibility of implementing the remedy that the plaintiffs in Juliana seek. What a ruling in favor of the plaintiffs will do, however, is create powerful momentum for a “Green New Deal” of far greater scope than whatever compromise package would otherwise eventually find its way for a signature from a friendly White House in 2021 (they hope). This, in turn, would be devastating to America’s prosperity, freedom, and ability to compete economically and militarily in the world.

The saddest part of the entire climate activist movement is its unwitting nihilism. Fossil fuel development is the only way that people in the world will be quickly lifted out of poverty. Fossil fuel provides 85 percent of global energy production, and for every person on earth, on average, to consume half as much energy per capita as Americans do, global energy production has to double. This cannot possibly be achieved without ongoing development of fossil fuel, along with whatever renewable technologies we can muster.

America should be encouraging the development of clean fossil fuel, at the same time as it pours research into leapfrog energy technologies: safe nuclear fission, nuclear fusion, the industrial development of outer space including satellite solar power stations.

If environmentalists really believe what they say, they would support such endeavors—along with technologies to lower the human footprint: aquaculture, fish farming, high-rise agriculture, urban agriculture, smart agriculture, lab-grown meat, and innovations certain to come that we haven’t even thought of yet.

Cheap energy is the primary enabler of prosperity, literacy, urbanization, female emancipation, reduced infant mortality, and voluntary population stabilization. Without it, throughout the teeming tropics, women would continue to gather wood for the cooking fires, men would hunt bush meat, and forests and wildlife would continue to disappear.

These privileged American children and their manipulative activist parents may pat themselves on the back as they drive their Priuses to the courthouse. But their utopian vision delivers a dystopian fate to the less fortunate on the other side of this world.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

Photo credit: iStock/Getty Images

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America • civic culture/friendship • Post • The Courts

It Can Take a Foreigner to Teach Us the American Dream

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NORTH VERSAILLES, Penn.—Starr DeJesus admits she learned a lot about both the generosity of the American people and her own potential from an immigrant who spoke to her civics class.

“I didn’t know it was just an America thing to tip servers,” the high school senior and part-time Denny’s server said. “We rarely emphasize the good things about our culture. The only things you ever hear about on social media are complaints or criticisms.”

DeJesus said she also didn’t consider how much it is within her own power to earn more money. “You gotta push,” she said. “Some people you really have to impress and wow to get that tip. If you do the bare minimum, they’re not going to care and they’re going to disregard you. But, me personally, I try my best every day. That’s why I have a lot of regulars, and I’m able to earn so much money being this young. But it is a lesson I will take with me to college and eventually my career.”

The larger lesson she and 100 or so other high school students here at East Allegheny High School learned was something they sheepishly admitted afterward that they had taken for granted: how lucky they are to be born in America.

Nick Adams, the immigrant from Australia who spoke to the students, appreciates this in a way a native may never truly understand.

When Adams was a boy, an American doctor, who happened to be interning in Australia, successfully diagnosed the rare cancer he had. Adams points to that moment as evidence of American exceptionalism.

He has since dedicated his life to reminding young people through his nonprofit, the Foundation for Liberty & American Greatness, of all the aspects that make this country truly unique. On this blustery spring day, he was in the Mon Valley discussing with these students why they should remember America’s greatness.

The students were riveted by Adams’ perspective. His questions engaged them and challenged them on the benefits of their citizenship, which he equates to winning the lottery.

“OK, so in my hand I have a coin,” he says. “I want to ask you, there are three things inscribed on every coin in U.S. currency and printed on every dollar bill of every denomination in American currency. Who can tell me what those three things are?”

The students provide the answers: “In God we trust,” “e pluribus unum” and “liberty.”

“I like to call it the American trinity,” Adams says. “Some of you might have heard the holy Trinity. I like to call it the American trinity. Those three things make America a unique place. Some countries have one of those things. Some countries have two of those things. But no other country in the world has the unique blend of each of those three different things. Liberty, e pluribus unum, and in God we trust.”

East Allegheny High School is an ordinary high school campus located in a tidy middle-class neighborhood that has seen better days economically. It is nonetheless surrounded by modest homes whose owners clearly take great pride in their appearance.

It is a town that has not succumbed to the hollowed-out blight common among river towns in the Rust Belt. But the shrinking population has led to a smaller school district: There are 724 students seventh through 12th grade. The student body is 57 percent white and 30 percent black.

Fifty-seven percent of the 2018 graduates went to a four-year college. Thirty-eight percent went to community college. Three percent went to a trade school. And 1 percent joined the Army.

Marissa Riggs, a senior from the nearby borough of Wilmerding, was told by her honors history teacher to come to the presentation. “Honestly I am glad it was compulsory,” she said. “I really learned a lot.”

“I thought Mr. Adams was really inspiring. He reminded us powerful things we sometimes take for granted, such as we are a government of the people, not a people of the government,” she said, adding, “I think we’re a little bit too spoiled and entitled sometimes in our thinking.”

Perhaps learning, like everything else in our daily lives, is too laced with politics, and simply delivering the details to students in a compelling way can help make understanding all of history, good and bad, a lot more meaningful.

Photo Credit: Getty Images

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2016 Election • Administrative State • Deep State • Democrats • Donald Trump • Law and Order • Post • The Courts

Jurisprudence and the Failed Coup

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The indispensable Victor Davis Hanson recently noted, “Real coups against democracies rarely are pulled off by jack-booted thugs in sunglasses or fanatical mobs storming the presidential palace. More often, they are the insidious work of supercilious bureaucrats, bought intellectuals, toady journalists, and political activists who falsely project that their target might at some future date do precisely what they are currently planning and doing—and that they are noble patriots, risking their lives, careers, and reputations for all of us, and thus must strike first.”

He was discussing what we are now beginning to understand was the attempt to oust Donald Trump begun by officials in the Obama Administration, including certainly former FBI Director James Comey, assistant director Andrew McCabe, former acting Attorney General Sally Yates, former Director of National Intelligence James Clapper, former CIA Director John Brennan, former FBI counterintelligence chief Peter Strzok, former FBI attorney Lisa Page, and quite possibly President Obama himself.

This will, in the long light of history, be regarded as the greatest misuse of governmental power ever to appear in our politics, and yet there has been very little attention paid to how this could occur and why at this particular time in our political development.

Equal Protection Denied?
To a hammer everything looks like a nail, and to a law professor like me, everything looks like a problem in jurisprudence, and it does appear that it was a change in our approach to law in the courts and the law schools in the middle of the twentieth century that is responsible for the betrayal of our democratic ideals on the part of those who attempted the failed coup against Donald Trump.

It is, of course, always characteristic of those in power to believe they ought to stay in power, and to them any means at hand are justified by that end. Perhaps this is the simple answer to why these miscreants did what they did, but I think the problem is a deeper one peculiar to American law about 70 years ago.

At that time a number of American intellectuals began seriously to question the existing laws, particularly in the Southern United States, that seemed wrongly to be subjugating African Americans (the Jim Crow laws), and, in the name of equality, they embarked on an intellectual project suggesting that the courts could remove these vestiges of slavery through an expansive interpretation of the 14th Amendment, which provided that no state should deny to any of its citizens “the equal protection of the laws.”

The research of the distinguished legal historian Raoul Berger made clear in the 1970s that the historical meaning of the phrase “equal protection” was simply a guarantee that no citizen could be denied access to the courts to uphold property and contract rights, but that historical understanding certainly did not reflect a clear wish to give federal courts power to reallocate the responsibilities of state and federal governments that were clearly provided in the Constitution. After all, the 10th Amendment makes clear that the federal government (including the federal courts) is to be one of limited and enumerated powers, with the governments closest to the people—the state and local bodies—given whatever residue of power existed, save that which was retained by the people themselves.

Judges Reign
Berger called the book in which he made this case Government by Judiciary, to emphasize that from the 1950s to the 1970s, and, in particular, the work of the Supreme Court led by Chief Justice Earl Warren, the most important policy-setting organs in the republic became the federal courts, rather than Congress or the president.

Our courts are still making policy, particularly as a brace of Obama-appointed judges seek to nullify executive initiatives of the Trump Administration, but it was the attitude of the Warren Court justices and their acolytes on the lower courts and in the academy that are of most interest to us here.

As one of them, a United States Court of Appeals judge, J. Skelly Wright, made clear in an important 1971 Harvard Law Review article, what the Warren Court was doing was implementing a jurisprudence of “goodness,” to redress then-existing evils such as racial segregation, legislative reapportionment that favored rural over urban districts, purportedly unfair investigative techniques resulting occasionally in coerced confessions, and, he might have added, mandated prayers and Bible reading in the public schools.

All of these things were clearly matters traditionally left to the discretion of the states, but the Warren Court proceeded to rewrite the Constitution to remove that discretion. Thus our pluralistic society became more centralized, and as a result a cadre of enlightened ephors in Washington decided they possessed superior wisdom to the rubes in the hinterlands.

The Warren Court never described the state legislators whose authority they supplanted as “deplorables,” as Hillary Clinton would notoriously label President Trump’s supporters, but the sentiment, sadly, was probably the same.

While it is undeniable that there was some nobility in what the Warren Court did, that nobility was in the service of undemocratic means, as the popular sovereignty on which the Constitution ultimately depends was dangerously eroded by that court.

It is equally notorious that something similar happened with decisions of the Burger Court such as Roe v. Wade, or decisions of the Roberts Court such as NFIB v. Sebelius or Obergefell v. Hodges. These were all cases where a majority of the Supreme Court decided to overrule policy decisions appropriately made by state governments, in the service of a purportedly superior ideology professed by particular justices.

It is no coincidence that deep state bureaucrats such as Comey, Brennan, Clapper, et. al., and the Harvard Law School-trained Obama would be tempted to act on what they must have seen as their superior judgment to the voters of flyover country who chose to elect Donald Trump. To these federal officials, the Fabian socialist policies of the Obama Administration, purportedly dedicated as they were to equality, efficiency, redistribution, and centralized control were the inevitable wave of the future, and nothing as trivial and outdated as the Electoral College (or perhaps the Constitution itself) ought to be permitted to interfere.

What Justice Requires Now
If we are still a republic governed by the rule of law, then those who engineered​ this failed coup (to use Hanson’s and Roger Kimball’s term), with its Russian collusion scheme must be brought to justice, and there is every indication that Attorney General Barr understands this and is proceeding accordingly.

Equally important, however, is that we understand the poisonous nature of a legal philosophy that enables justices, judges, and even bureaucrats to overrule the decisions of state and federal legislatures or voters not because they have exceeded traditional and historical constitutional limits, but because those decisions are not in keeping with the tenets of progressive ideology.

Donald Trump and William Barr have their work cut out for them in rooting out the excrescences of an overweening federal leviathan, and Trump’s appointments to the federal bench should be instrumental in that effort, as well.

It is now time, however, for our law schools, enamored as they have been with the Warren Court and with judicial policymaking, to come to an understanding that a return to more traditional notions of jurisprudence and constitutional hermeneutics are essential. If the rule of law and popular sovereignty are to remain as the cornerstones of our polity and our Constitution—the real appeal of Donald Trump to his supporters, and the two quintessential aspects of American greatness—this simply is indispensable.

Content created by the Center for American Greatness, Inc. is available without charge to any eligible news publisher that can provide a significant audience. For licensing opportunities for our original content, please contact licensing@centerforamericangreatness.com.

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America • Center for American Greatness • Democrats • Post • The Courts

How National Injunctions Create Constitutional Chaos

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Nationwide injunctions—when a single district court judge can halt the enforcement of a law or policy across the country—have been stymying President Trump’s agenda from the get-go. And Attorney General William Barr is getting fed up.

In a speech on Tuesday to the American Law Institute, Barr railed against national injunctions, noting that 37 of them have been issued against President Trump—more than one a month—compared to just two that were issued against President Obama during his first two years in office. According to Justice Department statistics cited by Barr, only 27 national injunctions were issued in all of the 20th century.

Barr is right to complain. The judiciary—which, it should be pointed out, the Framers envisioned as the weakest branch—has asserted breathtaking and unprecedented control over the policy process. One judge can now effectively cancel a policy with the stroke of a pen. As Barr put it, these injunctions give “a single judge the unprecedented power to render irrelevant the decisions of every other jurisdiction in the country.”

In other words, “one judge in one circuit gets to control the law until the Supreme Court intervenes.”

In practice, this has encouraged plaintiffs to forum shop—to seek the jurisdiction most friendly to their cause. It’s no accident that nearly all of the national injunctions issued against the Trump Administration have come from deep blue states.

This has also resulted in a measure of judicial absurdity. Individual judges have declared that President Trump cannot undo actions by executive order, despite the fact that many of those same actions were created by executive order in the first place. And a judge in one forum can issue an injunction contradicting one issued by a judge in another.

The consequence of these repeated injunctions is not just a dangerous erosion of the separation of powers, but chaos in our political system.

For evidence of this, look no further than DACA—the Deferred Action for Childhood Arrivals program created under President Obama, which gives legal status to immigrants who were brought here illegally as children. Obama’s actions were widely decried as well outside the bounds of executive authority. That is, though the law gives the executive considerable power to enforce immigration law, the president does not have the authority simply to wish new programs into existence.

Upon taking office, President Trump sought to wind down the program, a chit that gave him leverage to bring Democrats to the table over larger immigration reform. But a judge in California had other plans. As Barr detailed,

The first injunction from the Northern District of California came down on January 9, 2018, in the middle of high-profile legislative discussions. Hours earlier that same day, President Trump allowed cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress over the DREAM Act, border security, and broader immigration reform. Of course, once a district judge forced the Executive Branch to maintain DACA nationwide for the indefinite future, the President lost much of his leverage in negotiating with congressional leaders who wanted him to maintain DACA nationwide for the indefinite future. Unsurprisingly, those negotiations did not lead to a deal.

The entire legislative process—elected representatives of the people, negotiating between the branches, as the Founders intended—was halted because of a single, regional judge in the Northern District of California.

But it’s not just the legislative process that has stopped. What has this particular injunction wrought? Barr, again:

Dreamers remain in limbo, the political process has been preempted, and we have had over a year of bitter political division that included a government shutdown of unprecedented length. Meanwhile, the humanitarian crisis at our southern border persists, while legislative efforts remain frozen as both sides await the courts’ word on DACA and other immigration issues.

The courts were never intended to have this much authority. Judges were never intended to be our unelected robed masters. Writing in Federalist 78, Alexander Hamilton envisioned the courts to be the “least dangerous” branch, because courts have “no influence over either the sword or the purse . . . neither force nor will, but merely judgement.”

That assurance increasingly rings hollow as injunctions continue to proliferate, short circuiting the democratic political process.

So what is to be done? Ultimately the balance of powers must be restored, and the legislative branch is the one best positioned to do it. Proposals exist in the House of Representatives to claw back the policy making role which the courts have unjustifiably absorbed.

But, given the Democratic leadership in the House, whose priorities currently are benefiting from judicial supremacy, those proposals are unlikely to receive any consideration.

In a speech to the Federalist Society earlier this month, Vice President Mike Pence revealed that the administration is looking for opportunities to challenge national injunctions in the U.S. Supreme Court.

The high court has demurred on several opportunities to weigh in on the injunction chaos in the lower courts. But there does appear to be a growing receptiveness. Writing in a concurring opinion in a case upholding President Trump’s travel ban (itself subject to several injunctions), Justice Clarence Thomas urged the court to step in:

I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

Action, be it from the Supreme Court or Congress, needs to come soon. “This would doubtless upset those who’ve grown used to thwarting government actions through the court system,” write law professors Nicholas Bagley and Samuel Bray. “But the United States is a fractious, complicated democracy, and it’s disconcerting how much authority we’ve ceded to lone, unelected judges.”

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Conservatives • Post • Technology • The Courts

Kavanaugh Stands Up for Americans Against Big Tech

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U.S. Supreme Court Justice Brett Kavanaugh ruled with the majority on Monday that iPhone users can sue Apple Inc. over its app prices. Kavanaugh rejected Apple’s argument that consumers could not challenge the company’s policy of taking a 30 percent commission from its apps and refusing to let consumers purchase iPhone apps from third parties.

“It is undisputed that the iPhone owners bought the apps directly from Apple,” Kavanaugh argued.

While this is a great start, we may need new legislation to prevent monopolies like Apple and Google from discriminating against consumers and small businesses that use their platforms.

What’s most surprising is that Kavanaugh sided with the four liberal justices in his decision. The other four conservative justices dissented from his opinion.

Several conservative commentators lashed out at Kavanaugh for his decision. Ben Shapiro said the ruling justified his skepticism of Kavanaugh. Radio host Jesse Kelly said the vote proved Kavanaugh was “standard Washington D.C. GOP” and “pathetic.” Daily Wire writer Josh Hammer called the justice a “lifelong inside-the-Beltway D.C. swamp creature” and his ruling “an egregious endorsement of a dubious antitrust legal theory.”

Apparently, “true conservatives” are supposed to support Big Tech over the average consumer.

In reality, Kavanaugh did not violate conservative principles or please the swamp. The swamp is full of lobbyists, journalists, and think tankers who receive lucrative salaries courtesy of tech giants. It’s doubtful they were pleased by Monday’s ruling.

Instead, his ruling empowers Americans to fight back against the tech giants. Apple and Google operate a duopoly on the mobile operating systems market, where over 99 percent of the market is collectively controlled by Apple and Google’s Android. Their business practices ensure they are the only ones in the game. For instance, Android makes Google Chrome its default browser, and Google pays Apple billions to have its search engine as the default on iPhones.

Very few companies have the capital to make their services competitive in this environment. Neither Apple nor Google want fair competition. They want to rule the market.

How does it benefit the consumer to be stuck with only two companies who shut out all competition?

Unfortunately, too many conservatives idealize corporate giants and fear government intervention more than corporate tyranny. Fortunately, Justice Kavanaugh is not one of them.

Antitrust laws are designed to help the consumer and limit corporate abuse. Americans who fear big government should be just as worried about powerful corporations that control our information, shape our news, and provide the public forums of the 21st century.

The Trump campaign understood this in 2016. In an official Trump campaign statement less than a month before the election, economist Peter Navarro praised the righteousness of antitrust laws.

“Over a hundred years ago, a pro-business Teddy Roosevelt busted up more than 40 oil, railroad, steel and other ‘trusts’ that were wielding their rapacious monopoly power to gouge consumers and interfere with the efficient functioning of the American economy,” said Navarro, who currently serves as President Trump’s director of trade and manufacturing policy.

He added this promise about perfidious corporations that control Americans’ information: “Donald Trump will break up the new media conglomerate oligopolies that have gained enormous control over our information, intrude into our personal lives, and in this election, are attempting to unduly influence America’s political process.”

The subject was media companies, but it easily could have been about tech giants.

President Trump said in November that his administration is looking at Amazon, Facebook, and Google for potential antitrust violations.

U.S. Senator Ted Cruz (R-Texas), a bonafide conservative, has also suggested antitrust laws as a possible weapon against Big Tech.

“By almost any measure, the giant tech companies today are larger and more powerful than Standard Oil when it was broken up,” Cruz said in April. “If we have tech companies using the powers of monopoly to censor political speech, I think that raises real antitrust issues.”

Conservatives claim Kavanaugh sided with the liberals on Monday. Even if that were true (it really isn’t), that’s preferable to siding with the oligarchs of Silicon Valley. Big Tech deserves more antitrust scrutiny, not less. Smart conservatives should understand this.

If anything, existing antitrust laws may not go far enough against the tech giants. As the Internet Association—which represents Google, Facebook, Twitter, Amazon, and other tech companies—hypocritically argued in a brief on “net neutrality”: “ex post antitrust enforcement is ill-equipped to provide the certainty needed to promote future innovation and cannot address non-economic factors, like the free speech concerns at the heart of ensuring that consumers can access internet content of their choice.”

This is a legitimate point, but tech giants only wanted it to apply to their competitors. Net neutrality only covered internet service providers—not tech platforms.

When it comes to smartphones, Google and Apple’s duopoly can block any app that threatens their precious business model or any political view they deem offensive. If your app is blocked by Apple or Google, it’s far worse for your business than anything these companies complained would happen without net neutrality.

Justice Kavanaugh this week helped make tech giants a little more accountable, but perhaps Congress and President Trump need to go further and champion “Big Tech Neutrality.” To paraphrase every tech executive’s opinion on net neutrality, Big Tech neutrality would ensure tech platforms remain free and open to all.

Only Google-funded conservatives could oppose the idea.

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Congress • Donald Trump • Post • The Constitution • The Courts • the Presidency

The Supreme Court Can Stop a Trump Impeachment

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Fueled by the recent release of the Mueller report, the Left, including many Democrats in the U.S. House of Representatives, has ramped up its longstanding call for the impeachment of President Donald Trump. The president—arguably the best counter-puncher in American political history—has responded by tweeting, “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”

Not surprisingly, in response the Left has issued a blizzard of replies to the president’s tweet. Harvard Law School professor Laurence Tribe, for example, retorted in the most frequently repeated of the replies that it was “idiocy” for the president to think the Supreme Court would have jurisdiction over an impeachment proceeding.

I disagree. Although it is true that the nation’s highest court held in 1993 that the question of whether the Senate had properly tried an impeachment of federal judge Walter Nixon was a political question that could not be resolved in the courts, Justices Byron White, Harry Blackmun, and David Souter wrote separately to voice their concern about foreclosing the impeachment process from judicial review. While the three Justices agreed that the Senate had done all it was constitutionally required to do during Judge Nixon’s impeachment trial—namely, appoint a committee of senators to hear the evidence against Nixon and later report to the Senate as a whole for a vote on his removal from office—they insisted that the court must retain the power to review cases in which the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process such as a coin toss, or because the Senate thought the impeached officer was “a bad guy.”

Moreover, the House is not the Senate and despite Gerald Ford’s embarrassing boast in 1970 as a member of the House that an “impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” the Supreme Court unquestionably could enjoin any impeachment proceeding that is nothing more than a thinly veiled coup d’etat.

An attempt to impeach President Trump at this point would be precisely that. After all, the Left has been trying to overturn the 2016 presidential election from the moment Trump won it, and they haven’t stopped trying in the two-plus years since the election. Tribe himself, in a May 13, 2017 op-ed in the Washington Post, wrote that President Trump “must be impeached” for “obstruction of justice” after firing FBI Director James Comey: a conclusion recently rejected by the Mueller report itself.

Revealingly, Tribe tried to explain why, in his not-so-impartial opinion, what President Clinton had done when he was president was not an impeachable offense. “In Clinton’s case,” Tribe wrote, “the ostensible obstruction consisted solely in lying under oath about a sordid sexual affair that may have sullied the Oval Office but involved no abuse of presidential power as such.”

I strongly suspect that the Supreme Court would not be indifferent to the fact that the Left’s attempts to undo President Trump’s 2016 election victory have taken on the appearance of throwing-anything-and-everything-against-the-wall-to-see-what-sticks. Recall, for example, that the Left has argued that the president should be impeached and removed from office for violating the Constitution’s Emoluments Clause, an obscure provision addressing corruption and curry-favoring at the hands of foreign governments. That attempt has gone nowhere.

The Left also has insisted that President Trump should be impeached and removed from office for, in the words of former Clinton labor secretary Robert Reich, “unfaithfully executing his duties as president” in faulting President Obama on several occasions; for his alleged violation of the First Amendment guarantee of freedom of religion with his travel ban; and for his alleged violation of the First Amendment protection for a free press in criticizing the media for criticizing him. Reich has gone so far as to accuse President Trump of treason against the United States. None of those scurrilous accusations have stuck either.

I also suspect that the Supreme Court would not be indifferent to the related attempts by the Left to insist that President Trump is not “mentally fit” to serve and should be stripped of power under the 25th Amendment, especially when that frivolous charge was based on the “diagnoses” of so-called mental health professionals who have never met, let alone, treated the president.

In short, I am confident that the Supreme Court would see any formal move by the House to impeach President Trump for what it is: a blatant attempt to overthrow the legitimately elected President of the United States. I am likewise confident that the Justices would comply with their oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and put a stop to it.

Photo credit: Chip Somodevilla/Getty Images

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Center for American Greatness • Congress • Donald Trump • Greatness Agenda • Immigration • Post • The Courts • The Left

Border Crisis: ‘The System Is On Fire’

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In 2014, President Obama declared a “humanitarian crisis” at the border. But in just the first three months of 2019, apprehensions at the border are almost double the rate they were during the entire 2014 fiscal year.

Things are now so bad that even the New York Times can’t ignore it. The paper finally admitted last week that the border “may have reached a breaking point.”

New statistics from U.S. Customs and Border Patrol (CBP) paint a grim picture of a border that is almost completely overwhelmed. In February, we saw the highest number of apprehensions since 2007, with family apprehensions 560 percent higher than in February 2016. This month, family apprehensions are up by 40 percent just from last month. In just the first six months of the fiscal year, CBP has apprehended and turned away more than 422,000 people—more than they did in all of 2017.

In a press release, CBP Deputy Commissioner Robert E. Perez called the situation a “system-wide emergency.” Another top official simply said: “The system is on fire.”

While apprehensions have yet to top the record of 1.6 million, set in 2000, what’s happening now is putting a distinctly different pressure on the system. Most of the 1.6 million illegal immigrants arrested in 2000 were Mexican adults, traveling alone. Currently, however, the bulk of those arrested at the border are family units and unaccompanied minors.

The distinction is crucial. American immigration laws treat single adults differently than they treat families and minors traveling alone. Single adults are detained or deported. Family units, however, are released into the United States with orders to appear before an immigration judge, a process that usually takes years.

In other words, mass apprehensions taking place at the border are simply turning into mass release.

Exploiting Asylum Loopholes
There are other important differences in the demographics. Instead of single adults from Mexico, CBP’s latest statistics show that most of these families are from Central America, and they are claiming asylum when crossing the border.

Our asylum loopholes have become notoriously easy to exploit, particularly as liberal immigration judges continue to stretch the definition of “persecuted social group” to include “married women in Guatemala who are unable to leave their relationship” and “those likely to be recruited by gangs.”

But many, if not most, of these migrants aren’t coming to the United States because they’re fleeing some sort of persecution. They’re coming here to work. In recent testimony before the Senate Homeland Security and Governmental Affairs Committee, John Daniel Davidson testified about his interviews with many migrants making their way to the U.S. southern border. He noted several characteristics.

  • A majority of the “family units” are men traveling with one or  more children;
  • Many of these men say they have a wife and other children back in their home country and that they intend to secure work in the United States. and send money back to support them;
  • They are headed for points across the U.S. and have family members or friends in those places. Many of them already had jobs lined up;
  • Nearly all of them say they left their homes because it is dangerous, citing gang violence, threats, extortion, etc. They are all claiming asylum;
  • At the same time, many of them will admit that they don’t plan to remain in the United States permanently and in fact have a set amount of time they plan to live and work here before returning home.

These are economic migrants, likely without valid asylum claims. Yet they’ve figured out how to game the system and gain entry, by claiming asylum.

And it works. Our detention laws don’t allow families to be detained together, and our asylum laws mean they can’t be sent back. So, instead, they are released into the country with a court date, years into the future. (Asylum courts currently have a backlog of 830,000 cases.)

Solutions Are In Trump’s Hands
Dysfunction and outright indifference to the border crisis have made Congress largely irrelevant to solving the problem.

This may be part of what motivated President Trump to shake up the Department of Homeland Security. He knows the executive branch, for better for worse, will be at the tip of the spear in attempting to get a handle on the problem.

With many of the top spots open at DHS, the new leadership needs to focus, first and foremost, on two key aspects of enforcement.

First, they need to challenge the 1997 settlement agreement that is propelling the “catch-and-release” of families. The Flores agreement only allows children to be detained for 20 days. To avoid separating children from their parents, the entire family is released into the interior of the country. Outgoing DHS Secretary Kirstjen Nielsen called the policy one of the “primary pull factors for illegal immigration,” and she’s right. Catch-and-release is a massive incentive for migrants, and the flow of illegal immigrants will not abate until it is fixed.

Second, the Trump Administration must address asylum loopholes. Federal law gives the administration ample discretion over how and whether asylum is applied. Different administrations have had different levels of discretion in adjudicating asylum claims. (President Obama’s lax standard resulted in asylum cases octupling from 2009 to 2016.)

The Trump Administration, through both DHS and the Department of Justice, can require its agents to do as the law expressly requires and make a “credibility determination” about the alien’s claim. This also requires asylum adjudicators to take into account whether or not the alien passed through other countries while en route to the United States where asylum also could have been granted. This is the standard in international law, which requires that those seeking asylum in the European Union assert their claim in the first EU country they enter.

The United States has an agreement like this with Canada, but Mexico has refused to follow suit, despite passing a generous asylum law in 2011.

That said, nothing prevents U.S. agents from using migrant’s failure to claim asylum in other countries as part of their discretionary determination about the credibility of their asylum claim in the United States.

All of this would be easier if Congress simply fixed the law. But as it stands, neither the Democrat House nor the Republican Senate appears to have any intention of addressing what even the liberal lights now admit is a crisis at the border. Like it or not, the Trump Administration is now the first and last line of defense in enforcing the law, securing the border, and ensuring the sovereignty of our southern border.

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Administrative State • America • Center for American Greatness • History • Post • The Constitution • The Courts

Don’t Read the Constitution the Way Robert Bork Did

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In two recent articles (“Phony Constitutionalists Despise This Freshman Senator” and “The Pernicious Notion of ‘Unenumerated Rights’”) Mark Pulliam attempts to construct a defense of original intent jurisprudence. His attempt is vitiated by one glaring defect: he is utterly mistaken about the first principles of the Constitution. He invites us to “Recall our first principles: The U.S. Constitution is a compact among the states, which existed as separate sovereigns prior to ratification of the Constitution in 1789.”

The Constitution, of course, states that “We the people of the United States . . . do ordain and establish this Constitution for the United States of America.” It is notable that it does not say “We the States. . .” The people created the Constitution, the Constitution did not create the people. Article VII of the Constitution specifies that it was signed “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.” Thus independence is fixed on the date of the Declaration of Independence, which refers to Americans as “one people” and as “the good People.” The people who established and ordained the Constitution were the same people who dissolved “all Allegiance to the British Crown.”

Madison and Hamilton in The Federalist surely would not have characterized the Constitution as a “compact among the states.” Madison described it as “partly national, partly federal,” with the national elements being the “supreme Law of the Land.” Madison and the other leading Federalist supporters of the Constitution agreed that a compact among sovereign states would be, in Hamilton’s words “incompatible with the idea of government.”

Abraham Lincoln, in his July 4, 1861, “Message to Congress in Special Session,” refuted the allegation that states had ever been sovereign and therefore could in any way assert a right to secession. “The Union,” Lincoln declared, “is older than any of the States; and, in fact, it created them as States . . . Not one of them ever had a State constitution, independent of the Union.” He explained that the “United Colonies” were declared to be “Free and Independent States” in the Declaration of Independence. The object of the Declaration was not to proclaim them independent of one another, but as united states. They were not independent, sovereign states having no connection with one another, they were united together as a nation. The states have never been sovereign; they formed their constitutions as members of the United States of America. Lincoln perfectly captured the understanding of America’s Founders.

Pulliam, following Robert Bork, would probably reply that the natural law principles of the Declaration of Independence are entirely subjective and can yield any imaginable (and imaginary) results. Bork, in fact, argued that the Declaration was the beginning of our troubles; once you begin with the central principle of human equality you inevitably find yourself on the slippery slope to permissive egalitarianism. The Declaration, he argued, proclaims natural rights but is silent about natural duties. It should not be surprising then that today there are no limits, as Pulliam points out, to what may be claimed as individual (and idiosyncratic) rights. The Declaration is the real origin of substantive due process and substantive equal protection rights.

Bork frequently quoted Justice James Iredell’s opinion in the 1798 case of Calder v. Bull: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.” This, it would seem, is the reductio ad absurdum for both Bork and Pulliam—but not for the Founders. It is certainly true that “the ablest and the purest men” have disagreed about the principles of natural justice. But there was no disagreement among the Founders about the principles of the Declaration, beginning with the “self-evident truth” that “all men are created equal” and culminating in the right and the duty of the people to “alter or abolish” government when it becomes destructive of the ends for which it was established—the safety and happiness of the people. This is not “subjective fantasy,” but the inductive reasoning derived from a truth that is evident to all who have the capacity to reason.

The Declaration, of course, is the quintessential statement of social compact and Madison is famous for his frequent repetition of the basic principle that all just and free government is derived from social compact. Social compact rests on the consent of the governed as its legitimating principle and consent itself is synonymous with natural human equality. But in forming civil society based on consent, each person who consents to be governed also consents to incur the many obligations of society. This means, at a minimum, that in return for the protection of his rights and liberties each individual pledges to protect the rights and liberties of others. Rights and obligations are reciprocal in social compact. Bork was wrong. The Declaration does encompass obligations. The pursuit of happiness contains moral obligations; rights must be consistent with public happiness and the public good. This excludes any notion of rights that are merely self-serving or idiosyncratic. Given Bork’s defective understanding of the Declaration, it is little wonder that he and Pulliam reject it. But the grounds on which they reject it are wrong!

Pulliam and Bork rightly rail against judges who invent rights that have no textual basis in the Constitution or cannot fairly be inferred from the Constitution’s text. Both deny that there are “unenumerated” rights, even though the text of the Ninth Amendment indicates there are other rights “retained by the people” not listed in the Bill of Rights.

Madison, of course, always opposed a Bill of Rights, even as he became the prime mover in securing its passage. One of the reasons he opposed the project is that a list of rights reserved against government could never be exhaustive, and because it could not be comprehensive it may well become dangerous. The legal argument is “whatever is not included is excluded.” A list in the law or constitution cannot be simply suggestive: “Here is a list of things that are forbidden and there are other things as well that we cannot think of right now but may become important in the future.” No law or constitution can be so imprecise, but this is exactly the danger that Madison attempted to address in the Ninth Amendment. “The rights adumbrated in the first eight amendments are not exhaustive. There are others retained by the people and they must remain unenumerated.”

Madison realized that it would be better not to have a Bill of Rights because sooner or later, instead of limited government, we would come to believe that government can do everything except what we expressly say it cannot do. Without a Bill of Rights we would be more likely to demand that government justify the exercise of its power in terms of its delegated powers. The addition of a Bill of Rights, as Madison predicted, would transform limited government into unlimited government. This is the situation we find ourselves in today. The Ninth and 10th Amendments were designed to forestall that eventuality. But as Madison also realized, they were weak attempts to preclude the inevitable.

Bork argues that some parts of the Constitution are too obscure to be understood; their text, history, and logical structure simply cannot be understood—it is as if they has been rendered indecipherable by “inkblots” on the text. Because they are indecipherable they should be ignored. This is the case of the Ninth Amendment’s invocation of unenumerated rights. Best to ignore this “inkblot provision.” This is how Bork understands original intent jurisprudence! It is fair to ask, however: if it is legitimate to ignore parts of the Constitution one does not approve under the pretext that it is obscured by “inkblots,” why is it not equally legitimate to put into the Constitution clauses (and substantive rights) that one would like to have there? What is the essential difference? Isn’t one just as much judicial activism as the other?

Pulliam cites Justice Anthony Kennedy’s so-called “mystery clause” as a reductio ad absurdum of how the Supreme Court manufactures unenumerated rights out of whole cloth. I, too, have ridiculed this passage, and at the risk of being ridiculed myself, I bring it for discussion once again. Justice Kennedy had written in the context of abortion rights and the right to privacy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Pulliam characterizes this as “the type of psychobabble folderol that activist judges use to impose their policy preferences on Americans.” In the context of abortion, Pulliam’s ire is understandable. But we can also see this statement as resting at the heart of the free exercise of religion or what Madison called the “rights of conscience, the most sacred of all rights.” It is beyond cavil that this “sacred right,” where those decisions about how to worship God according to the dictates of one’s own conscience, requires something like the right to privacy, a sphere insulated from government intrusion. This is certainly one of the unenumerated rights that are encompassed by the Ninth Amendment. However, it is doubtful—nay impossible—to believe that abortion falls within the ambit of the rights of conscience.

For Bork, however, any reference to natural rights propels us into the realm of “values and totalities.” Madison feared this development: for Bork, rights do not exist by nature; they exist only because government confers them. Thus there can be no unenumerated rights; all rights are positive rights. Rights do not exist prior to the advent of government. The danger, as the framers knew, is that if government can create rights, it can destroy rights as well. Bork, true to form, denied there was a natural right to revolution, even though the founders described it as the right that guaranteed every other right.

Pulliam displays a particular animus at Justice Clarence Thomas’s attempts to restore the moribund “privileges or immunities” clause, fearing that it will provide a new source for judicial activism. “Privileges or immunities,” Pulliam argues, was rightly interred in the Slaughterhouse Cases (1873). It is clear, however, that from even the most casual reading of the debates in the 39th Congress, the framers of the 14th Amendment intended privileges or immunities to be the substantive core of the amendment. The clause repeated Article IV of the original Constitution and made that clause binding upon the states. It was because Slaughterhouse rendered the privileges and immunities clause impotent that due process and equal protection were pressed into service. Those clauses were ill-suited to the substantive tasks designed for privileges or immunities; thus the confusion and lack of boundaries that have resulted in due process and equal protection jurisprudence.

Raoul Burger, the famous 14th Amendment scholar and original intent jurisprude, sought to reanimate the privileges or immunities clause as a way of curbing judicial activism because he calculated (rightly in my opinion) that privileges or immunities were more amenable to limitation than equal protection and due process. This is precisely what Thomas is attempting to do. Natural law jurisprudence provides a principled basis to curb judicial activism. Thomas alone among the members of the Supreme Court understands this. Those following Bork, I don’t think, ever will.

The natural law principles of the Declaration, as Madison noted in the central number of The Federalist, was the authoritative ground of the Constitution—and still today is listed as the first of the Organic Laws of the United States in Title I of the U.S. Code. There is abundant evidence that the framers of the 14th Amendment sought to complete the founding by readopting the principles of the Declaration.

One quote, from Representative Thaddeus Stevens on May 8, 1866, is typical:

It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.

Insofar as the Constitution allowed for the continued existence of slavery and provided protections for that “peculiar institution,” it was only a partial expression of the Declaration’s central principle that “all men are created equal.” The concessions to slavery were necessary to keep the slave states, particularly South Carolina and Georgia, from bolting the convention. But when the Constitution is read in the light of the principles of the Declaration, the provisions protecting slavery are clearly shown to be compromises and not principles; that is, they are temporary departures from principles taken in order to secure the adoption of the Constitution which, in Lincoln’s phrase, put slavery in “the course of ultimate extinction.” But if we follow Bork and Pulliam in insisting that any reference to sources outside the text and structure of the Constitution is illegitimate, then we cannot distinguish the Constitution’s principles from its compromises. The provisions in the Constitution protecting slavery would then have the same status and dignity as those protecting liberty. It is the Declaration that supplies the purpose to the Constitution, and clearly distinguishes the permanent protections afforded liberty from the temporary expedients that protect slavery.

The Fifth Amendment specifies that “no person can be deprived of life, liberty or property without due process of law.” The debate that consumed America in the decade of the 1850s was whether a slave was a person or property. How can that question be settled within the “four corners” of the Constitution? In every circumlocution touching on the issue in the Constitution slaves are referred to as “persons.” At the same time, they are treated as “property” when they are taxed and when the return of fugitives is required. Within the “four corners” of the Constitution’s text, I submit, it is impossible to decide. Once you have reference to the principles that inform the Constitution, the Declaration, the question is easily resolved; human beings can never be property because “all men are created equal.” Those protections for slavery in the Constitution are compromises made necessary by political expediency to be tolerated only as long as necessary until it was possible to implement fully the principles of the Declaration. And, as Rep. Stevens remarked in 1866, the time for the fulfillment of the Declaration’s principles was at long last demanded by circumstances.

By the time Rep. Stevens gave his speech, the 13th Amendment abolishing slavery had already been passed. The late Harry V. Jaffa made a startling, but true, argument that the 13th Amendment is an unrepealable part of the Constitution. There is nothing in the Constitution that makes any amendment unrepealable, although some parts of the Constitution are still said to unrepealable, e.g., that every state must have two senators. Since the invocation of an unrepealable provision would have to rely on an authority higher than the Constitution, it would be difficult to imagine what authority could exist for the proposition that every state have two Senators. It is obviously different for the 13th Amendment. Here the natural law and natural right authority of the Declaration, the authoritative source of the Constitution’s authority, makes it unrepealable. Natural law principles—flowing inexorably from the fact of human equality—condemn slavery as a violation of natural law and natural right. Bork says, however, that the 13th Amendment could be repealed by a subsequent amendment but we depend on the good sense of the American people never to do so. For Bork, the Constitution is a positive law document that is merely procedure without a purpose. For the Founders, however, the purposes of the Constitution were spelled out in the Declaration of Independence and the Constitution served as the means to fulfill those purposes.

The rights contained in the Bill of Rights were originally designed to be part of the “privileges and immunities” that adhered to federal citizenship in Article IV. The architects of the 14th Amendment clearly intended to make the protection of those same rights safe from violations on the part of the states. It was thus the intention of the framers of the 14th amendment to “incorporate” the provisions of the Bill of Rights, not through the due process clause, but through “privileges or immunities” clause. Anyone who reads the 14th amendment debates easily can glean this intention from its leading proponents. The majority in Slaughterhouse willfully ignored this evidence. Had they given full recognition to the framers’ intent with regard to “privileges or immunities,” the due process catastrophe that we know of as “incorporation”—the source of so much judicial activism—could not have occurred.

Slaughterhouse upheld a state monopoly that the majority said did not implicate any privilege or immunity of United States citizenship. Clearly, however, a monopoly is an assault on the right to property, one of the “the privileges or immunities of citizens of the United States,” that the framers of the 14th amendment intended to be protected from state abridgment. Madison had written in his famous essay on “Property,” published just after the ratification of the Bill of Rights, that property was the right that comprehended all other rights, including freedom of speech, free exercise of religion, the rights of conscience, and other rights. His memorable phrase was that “as you have a right to property, so you have a property in your rights.” Monopoly, Madison averred, was an assault on the right to property because it denied the right to choose an occupation which was the primary means of securing property. As a means to securing property, the right to choose an occupation freely was a part of the right to property—it was a necessary extension of that right. Clearly, a proper understanding of the original intent of the framers of the 14th Amendment would have concluded that the free choice of an occupation was properly a part of the right to property under the “privileges or immunities” clause which the states could not abridge.

The Slaughterhouse majority took a truncated view of the “privileges or immunities” clause premised on the mistaken view that no change in the federal relationship had been worked by the 14th amendment. This was patently false. In the 39th Congress, the defenders of states’ rights—the heirs of those who were defenders of the southern slavocracy—attempted to maintain the palpable fiction of state sovereignty. The states were not sovereign before the Civil War and it was utterly futile to argue state sovereignty after the war, although there were enough states’ rights advocates to provoke debate. Calhoun’s “ingenious sophism” that “all men are not created equal, all States are created equal,” was the centerpiece of slaveocracy’s defense of slavery. That argument was dead in the post Civil War debates—but it continued to have advocates.

The 14th Amendment portended a radical change of the federal relationship. The privileges or immunities of United States citizenship were now primary and those of state citizenship secondary. The Slaughterhouse majority, of course, tried to minimize the revolution occasioned by the Reconstruction Amendments. Pulliam is simply wrong when he says that the Reconstruction Amendments were intended to apply only to the equal civil and political rights of the newly freed slaves. Even Slaughterhouse doesn’t take that position.

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Book Recommendations • Book Reviews • Conservatives • Cultural Marxism • Identity Politics • Post • Religion and Society • The Courts • The Culture • The Left

during a confirmation hearing

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Since World War II, the war against Christianity that began in the Enlightenment has intensified across the globe. Every day, 11 Christians are killed, three-quarters of them in Muslim majority countries. In western European nations, Christians are marginalized, ignored, and mocked even as Muslim sensibilities and illiberal practices are carefully protected. And in the United States, supposedly one of the most religious of the developed nations, Christians are widely despised in popular and high-brow culture, and demonized by Democratic politicians like Senator Dianne Feinstein (D.-Calif.), who during a confirmation hearing insulted a Catholic nominee for the U.S. Court of Appeals by scolding, “The dogma lives loudly within you,” recycling the old anti-Catholic smear that the nominee would be biased by her faith.

A review of Dark Agenda: The War to Destroy Christian America, by David Horowitz (Humanix Book, 224 pages, $26.99)

David Horowitz’s new book, Dark Agenda: The War to Destroy Christian America, is a meditation on this disturbing phenomenon and its dire implications for our republic.

Horowitz, a prolific author as well as the founder and namesake of the David Horowitz Freedom Center, is the most renowned bête noir of the Left and their progressive offspring. For more than 30 years of speaking, organizing, and writing he has been a scourge of their illiberal ideology and its totalitarian inclinations. An ex-radical leftist and Jewish agnostic, Horowitz defends Christianity because he understands the critical role it has played in the constitutional political order comprising unalienable rights and individual freedom. And as he explains, the serial assaults on Christianity have become a weapon for leftists to discredit all authorities beyond the state that pose a challenge to their bid for power.

Horowitz starts with the New Atheists of the 1990s such as Richard Dawkins and Christopher Hitchens. Like most atheists, their works bespeak the mentality of what George Orwell called the “embittered atheist,” one who “does not so much disbelieve in God as personally dislike him.” This “unscientific animus,” as Horowitz calls it, explains the Left’s crude, irrational ad hominem insults of and contempt for Christians’ intelligence and motives, which is ironic considering how often the atheist “brights,” as many fancy themselves, are unhinged in their vitriol.  One reason for this “hatred and loathing,” Horowitz says, is because “they have faith of their own”: their own status as the chosen and saved, and people’s “liberators––pioneers of a new human race.” It is no coincidence that the atheist creed is the same as the Marxist ideology driving the American Left, which believes that “science will usher in a utopian age of reason, enlightenment, and social justice.”

The atheist attack on faith, then, is one front in the progressive war against America’s constitutional political order. As Horowitz puts it,

It is a war against an imperiled nation––a war against this nation and its founding principles: the equality of individuals and individual freedom. For these principles are indisputably Christian in origin. They are under siege because they are insurmountable obstacles to radicals’ totalitarian ambition to create a new world in their image.

The progressive ideology ascendant today in the Democratic Party is “social justice,” like its Communist forbearer, a pseudo-religion that promises redemption not through God, but themselves. But as Horowitz points out, in fact they are repeating the primal sin of Adam and Eve, who believed Satan’s false promise that by rejecting God, they themselves would become gods. Contrary to the social and economic determinism of the Left, moreover, our free will to choose our innate vices and flaws instead of God accounts for the injustices and suffering that “social justice warriors” claim to battle. As determinists, however, the Left must delegitimize human agency and responsibility in order to eliminate the rival authority of religion, and justify the centralization and concentration of state power that progressives have pursued for nearly a century.

Horowitz argues cogently and with a wealth of examples that such attitudes are inimical to the Founders’ core beliefs.

First, humans are by nature flawed and vulnerable to the lust for power. Hence the Constitution’s dispersing, checking, and balancing of powers both to respect the factional diversity of the colonies, and to make it difficult for one faction to monopolize all powers. Second, they knew that these constitutional mechanisms for protecting freedom necessarily relied on faith in the creator who had bestowed on us unalienable personal rights like “life, liberty, and the pursuit of happiness” that lie beyond the powers of government.

But with the European bloody wars of religion still fresh in their minds, they also understood that the denominational diversity of the American colonists meant that faith must be a protected activity of civil society. Hence the very first amendment in the Bill of Rights forbids a national state religion, the clause that has been corrupted into an unconstitutional “wall of separation” used today to banish Christianity from the public square and quarantine it in the realm of private life. But the amendment also “guarantees,” Horowitz writes, “all Americans the freedom to express and exercise their religious beliefs.” This Free Exercise Clause has been “the first casualty of the war against religion, and America,” for it stands in the way of the progressives’ need to delegitimize any authority over human life and action other than their own.

The bulk of Dark Agenda contains a history of several controversies that ultimately were settled by the Supreme Court rather than by Congress. Each directly and indirectly represented an attack on Christians and their rights enshrined in Free Exercise Clause of the First Amendment. This history also reveals the modus operandi of the Left and its penchant for ginning up “crises” and then relying on the unelected, unaccountable members of the Supreme Court to achieve their ideological aims.

The first is Engel v. Vitale in 1962, which banned prayer in public schools. The ACLU represented the five plaintiffs, one of whom was a founding member of its New York affiliate. Three courts had already rejected the complaint, the New York Supreme Court correctly noting that prayer in school was not a violation of the First Amendment, that no court in previous history had deemed it was, and that doing so “would be in defiance of all American history” and “would destroy a part of the essential foundation of American governmental structure.”

But the Supreme Court disagreed, arguing that it was a violation of the Establishment Clause because it did not recognize the belief of atheists. The pattern was set: a tendentious misreading of the Establishment Clause would over and over negate the Free Exercise Clause, justified not by legal and historical precedent, but by the ideological preferences of an activist faction. Subsequent decisions further chipped away at the presence of faith and Christian history in public schools. This purge created a vacuum that over the years has been filled with progressive and leftist ideology, leading to the intolerance and censorship dominating education today. As Horowitz writes,

As our freedoms are steadily diminished under the onslaught of “political correctness” and social justice fanatics, the true story of American freedom must be revised, rewritten, and censored by school officials, textbook publishers, and other tentacles of our “Ministry of Truth.”

Engel v. Vitale set the pattern for future attacks on the Christian foundations of the American order. Activists backed financially and legally by left-wing organizations would file suits that ultimately would be decided by the Supreme Court. Then the judgment would morph into a “constitutional right” that had never existed, or even been contemplated by the Founders. Thus was achieved a long-time progressive goal of revising the Constitution into a “living” document to be shaped by political ideology, and the creation of endless new “rights” to replace the natural rights bestowed by “Nature and Nature’s God.” The most powerful weapon for “fundamentally transforming America” had been forged.

Horowitz goes on to demonstrate this weapon’s success in subsequent decisions. Murray v. Curlett in 1963, a lawsuit brought by the unstable and troubled leftist firebrand Madalyn Murray O’Hair, founder and president of American Atheists. Her victory in the Supreme Court banned Bible readings and the recital of the Lord’s Prayer in public schools. The lone dissenter was Justice Stewart Potter, who wrote that the ruling was not enforcing neutrality toward religion, the tendentious interpretation of the Establishment Clause, but “the establishment of a religion of secularism,” which now, the Wall Street Journal added, was “the one belief to which the state’s power will extend its protection.”

Once again, as Horowitz writes, a “minority in America” relying on a minority that comprised the unelected, unaccountable Supreme Court “was able to impose its will on all Americans.” As a result, the critical mechanism of federalism, the check on the power of the Federal government by the sovereign people, their states and the powers delegated to those states, was weakened.

More Supreme Court decisions that undermined the Constitution’s protections of state and individual rights from overweening power followed. Griswold v. Connecticut in 1965 struck down state bans on contraception, weakening the Christian doctrines and beliefs of millions of Americans, especially Catholics. Nothing in the Constitution justified creating this new right of contraception. So the activist supporters of the plaintiff, Planned Parenthood, sold the Court on a new right, “the right to privacy.” The Court’s reasoning was torturous and vague, as it had to be to justify such a right. So they rifled through the Constitution’s “penumbras” and “emanations” and “spirit” of other amendments in the Bill of Rights, a process redolent of seances.

The ultimate point, however, of the attack on contraception laws was the realization of the Cultural Marxist goal of turning sexual license into a force for “liberation” from a “patriarchal oppression” that chained women to their reproductive function and subjection to men. Hence the institution of the family, as well as religion, came under attack. That goal was further realized in the series of decisions that legalized on-demand abortion, the most important being Roe v. Wade in 1973. As well as being a direct assault on millions of Americans’ religious beliefs, this decision became the most divisive national issue since the Civil War, and still today sparks intense conflict.

After Roe, for the secular Left, Horowitz writes, the Supreme Court became “an all-powerful instrument . . . with which it could impose its radical, anti-Christian agenda on an unwilling nation.” The goal was not just abortion, but also to remove one of the bulwarks against the totalitarian impulses of the progressive technocracy that wants to aggrandize authority over all Americans. And their purpose was and remains to impose undemocratically its vision of human nature and society without having to persuade their fellow citizens through the constitutional mechanisms of deliberation and election that allows all citizens to have their say, and to hold accountable those politicians who are supposed to reflect the people’s will.

These are just a few samples of Horowitz’s much more detailed analysis of how battles in the culture wars­ like gay marriage or the role of religion in public life are part of a larger conflict over the nature of America and American citizenship. Should we be free, as the Constitution intended, to participate in the decisions that affect our lives and our most cherished beliefs? And should disagreements over first principles be solved through political mechanisms like free and open debate and deliberation, and participation in free and open elections? Or, as the leftists and progressives believe, should we be clients who cede their autonomy to a technocratic regime of state agencies and functionaries who demand the power to determine how our lives should be lived and our profoundest beliefs should be expressed?

We know what side David Horowitz is on, for he has spent decades battling against the hubristic pretensions of progressives and leftists who believe they have the superior knowledge to assume control of their fellow citizens’ lives, and shape them to achieve the Left’s utopia of perfect justice and equality. Horowitz also knows the gruesome consequences of those fantasies: genocide and murder that follow when any group of flawed human beings who forget the lessons of history and tradition, and promise heaven on earth but produce only mountains of corpses.

As Horowitz concludes, the election of Donald Trump has for the moment slowed this decades-long process of dismantling the American order and its Christian foundations. Trump’s unabashed defense of American exceptionalism and his practical achievement in reforming the federal judiciary, have challenged the power before which too many Republicans have quaked. But at this moment a new movement of self-avowed socialists and identity-politics tribunes have intensified the conflict and elevated it to new levels of invective, contempt, and outright hatred of ordinary Americans.

The stakes are high, and we all must arm ourselves against a well-funded foe that dominates the schools, the culture, and the media. David Horowitz, a veteran of numerous battles against the Left, has written an excellent guide to the history and ideas that have brought us to this pass.

Photo Credit: Laister/Express/Getty Images

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America • American Conservatism • Conservatives • Post • The Courts

The Pernicious Notion of ‘Unenumerated Rights’

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A recent 60 Minutes segment on Juliana v. United States, the lawsuit now pending in an Oregon federal court, in which environmental activists assert a constitutional right to be free from climate change, perfectly illustrated Sen. Josh Hawley’s concern about federal judges who embrace the doctrine of “substantive due process.” Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,” as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible: the “right” of a convicted murderer to have a sex-change operation at taxpayer expense, the “right” to same-sex marriage (Obergefell), the “right” to an abortion (Roe v. Wade), and so on, ad infinitum, ad nauseum.

Perhaps some activist judge in California or another rogue state will rule that the Green New Deal is required by the Constitution. This is not idle speculation. With the encouragement of a progressive professoriate, the body of judge-made constitutional law now abounds with so-called “unenumerated” (or unwritten) rights, a polite way of describing the process of pretending that the Left’s desired policy outcomes are dictated by the Constitution—and therefore enforceable by federal judges—when in fact they are not. Judicial activism—concocting phony constitutional rights—is a serious threat to representative self-government, yet is rarely discussed even though it occurs in plain view on a daily basis in federal courtrooms across America.

The topic of constitutional law tends to become the exclusive domain of lawyers and academics, because it is perceived to be too technical for the informed layman to understand. Unfortunately, the resulting lack of transparency and public engagement has allowed this vitally-important subject to be hijacked by obscurantists with their own objects in mind—aggrandizement of the judiciary and implementation of a leftist political agenda. For decades—beginning during the New Deal, but accelerating dramatically under the Warren Court in the 1960s—the Supreme Court has simply invented many “rights” that do not actually appear in the Constitution, in the process granting the federal government sweeping powers that the Founding Fathers never intended.

The federal courts, comprised of unelected, life-tenured judges often drawn from the progressive ranks of Ivy League law schools, have arrogated to themselves control over many political decisions that once were, and properly should remain, the exclusive province of the states. Invoking a few inapt phrases out of context—especially “due process” and “equal protection”—our black-robed masters have constructed an edifice of constitutional law that bears little resemblance to the document written in Philadelphia in 1787 and ratified by the sovereign American people. A constitutional system whose authority derives from “we the people” has become instead a swollen behemoth—a Leviathan subject to to the interpretations of interested “experts.” The Framers’ vision of a decentralized and self-governing republic has been lost in the fetid swamp of Washington, D.C.

Recall our first principles: The U.S. Constitution is a compact among the states, which existed as separate sovereigns prior to ratification of the Constitution in 1789. The Constitution primarily defines the powers and structure of the federal government, and prior to the adoption of the 14th Amendment in 1868 had little direct application to the states. The first 10 amendments (usually referred to as the Bill of Rights) were added at the insistence of some states, after the Constitution was written, to protect the states from federal overreach; as originally adopted, the Bill of Rights did not apply to the states. Not until the aftermath of the Civil War, during Reconstruction, was the constitutional structure of dual sovereignty altered to allow the federal government to enforce equal civil and political rights to the newly-freed slaves. This—and nothing else—was the mandate of the 13th, 14th, and 15th Amendments.

Instead, the Supreme Court has interpreted the 14th Amendment to “incorporate” the Bill of Rights against the states, and in the process banned prayer from the public schools (and religious expression more broadly from the public square), usurped political functions such as legislative apportionment, micro-managed the states’ criminal justice systems from arrest to execution, and generally anointed itself as a national super-legislature with broad authority to overturn state and local laws with which it disagrees. No sphere of activity is free of judicial meddling: public schools, prisons, social services, welfare benefits, the maintenance of public order (such as regulating homelessness and vagrancy), and even elections! At the time of the Founding, the states were widely believed to possess nearly-plenary “police power” over the health, safety, morals, and general welfare of their residents. Now, in the words of famed Judge Learned Hand, the Supreme Court has become a “bevy of Platonic Guardians.”

There is no constitutional warrant for this role. The Supreme Court should enforce the express provisions and structural elements of the Constitution (such as the separation of powers), but it should not “recognize” purported rights that are not contained in the Constitution. “Unenumerated” rights are bogus—a veritable Pandora’s Box of judicial mischief. If a claimed “right” is not clearly evident in the text of the Constitution, it should be rejected as wishful thinking on the part of the proponent. To resist the powerful urge to recognize their own personal predilections as constitutional rights, Supreme Court justices must lash themselves to the mast of constitutional text, in the manner of Odysseus overcoming the lure of the Sirens.

The textual orientation of “originalist” judges typically associated with the conservative legal movement (sometimes referred to as “strict constructionists”) generally predisposes them against judicial activism, but two factors threaten to foil that salutary trend. First, some conservative scholars embrace the notion that “natural law” should play a role in constitutional interpretation, even though “natural law”—like the activists’ imaginary “penumbras, formed by emanations”—is unwritten, intangible, and therefore entirely subjective. “Natural law” is no more corporeal than ghosts, and about as useful to the enterprise of constitutional interpretation. Second, many libertarian legal scholars—falsely posing as originalists—advocate a broad application of unenumerated rights (which they call “judicial engagement”) and seek to resuscitate the “privileges or immunities” clause of the 14th Amendment, which has been a dead letter since the Supreme Court correctly buried it in the Slaughter-House Cases (1873), almost 150 years ago.

Robert Bork deemed the clause “a mystery since its adoption,” yet some academics, like grave-robbers, are eager to exhume its jurisprudential cadaver. A broad reading of that moribund clause—favored by libertarians—would, in the words of the Slaughter-House majority, transform the Court into a “perpetual censor upon all legislation of the States”—the last thing the nation wants or needs. In the “even Homer nods” department, the normally-exemplary Justice Clarence Thomas—recently joined by rookie Justice Neil Gorsuch—occasionally indulges in this quixotic reverie. This is a dire mistake. Writing for the Heritage Foundation, Michigan Supreme Court Justice Stephen Markman, a renowned conservative legal scholar, emphatically recommended against revisiting the “privileges or immunities” clause, because it would likely become “a wellspring of new judicially determined rights.”  Bork concurred, arguing that reviving the clause would allow judges to “write their own Constitution.” We ignore this wise counsel at our peril.

Accordingly, Sen. Hawley and his colleagues should be extremely skeptical of judicial nominees who support any version of unenumerated rights, including—in addition to substantive due process—natural law, “judicial engagement,” the “privileges or immunities” clause, or any other constitutional theory that relies on “invisible ink” or encrypted messages that only “enlightened” judges can decipher.

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Law and Order • Post • Republicans • The Courts

Phony Constitutionalists Despise This Freshman Senator

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Newly elected U.S. Senator Josh Hawley (R-Mo.), who handily defeated incumbent Democrat Claire McCaskill in November, is a former Supreme Court clerk who served previously as Missouri’s attorney general. At age 39, he is the youngest member of the Senate. Generally regarded as a rising star, the cerebral Hawley was named to the Senate Judiciary Committee, a plum assignment for a freshman. Yet just months after taking the oath of office, Hawley was blasted—twice—by the Wall Street Journal, which not only accused him of “bad judgment” but nastily remarked about his youth and physical appearance (referring to him, oddly, as having “a lean and hungry look”).

What apostasy did Hawley commit to warrant such opprobrium? Did he sell out to Planned Parenthood, endorse the Green New Deal, or betray the Republican platform?

No, Hawley had the temerity to express concern about a pending judicial nominee to the D.C. Circuit, widely viewed as the second-most-important court in America, next to the Supreme Court.

Hawley questioned the judicial philosophy of Neomi Rao, President Trump’s choice to replace Brett Kavanaugh on the appellate court that often serves as a stepping stone to the high court (as it did for Kavanaugh, Chief Justice John Roberts, Justices Ruth Bader Ginsburg and Clarence Thomas, and the late Antonin Scalia). Hawley stated he had reservations about Rao’s position on Roe v. Wade—the notorious activist ruling that invented a constitutional right to abortion out of whole cloth—and also concerns about her opposition to the doctrine of “substantive due process.”

For this, the Wall Street Journal berated him for applying a “litmus test,” “inhaling rumors,” and attempting “to make himself a hero of the anti-abortion right.”

Let me be clear that I am agnostic about Rao, who cleared the Judiciary Committee (with Hawley’s support) despite this kerfuffle. Trump has done a superb job so far in appointing sound judges to the federal bench, and I have no inside information suggesting that Rao is unfit or unqualified. The Left, in its typical fashion, opposes Rao based largely on some op-eds she wrote for her college newspaper decades ago.

But left-wing Democratic opposition alone is not a basis for conservatives blindly to support a nominee, because the Democrats oppose all of Trump’s judicial nominees. Federal judges, once confirmed, serve for life, and it is an unfortunate fact of life that judges appointed by Republican presidents have often disappointed on the Supreme Court and the lower federal courts. Some of the worst Supreme Court justices of the 20th century, including Earl Warren, William Brennan, and the author of Roe v. Wade, Harry Blackmun, were appointed by Republicans. And don’t forget David Souter, another dud.

For this reason, judicial nominees warrant careful scrutiny prior to confirmation—even when appointed by Republican presidents—and any substantial doubt about their judicial philosophy should be resolved against the candidate.

Hawley was selected to serve on the Judiciary Committee because of his legal acumen and extensive experience as a constitutional litigator. After being burned so many times, conservatives should support rigorous due diligence for lifetime appointments. The most troubling aspect of the Wall Street Journal’s criticism of Hawley is the manner in which it dismissively pooh-poohed the basis for his reservations about Rao. “Substantive due process,” the Journal lectured, “has been misused, but it is by now deeply embedded in Supreme Court precedent.”

The Journal went so far as to defame the late Justice Scalia by stating he was guilty of using “substantive due process” himself, as if to suggest “we’re all activists now.” This assertion is so misleading as to be fraudulent.

While it is true that Scalia voted to apply the Second Amendment to the states in McDonald v. Chicago (2010) pursuant to the well-established “incorporation doctrine,” the term “substantive due process” is universally understood to refer to the judicial concoction of “rights” that appear nowhere in the Constitution, by conjuring substantive meaning from the “due process” clause of the 14th Amendment. “Due process” connotes procedural protection—the requirement of a hearing before the government takes adverse action. Reading “due process” as a constraint on the states’ inherent police powers is pure judicial usurpation—a transparent ploy to enact a “living Constitution.” The Warren Court used this bogus theory to “recognize” a right to sexual privacy in Griswold v. Connecticut (1965), and continued down this activist path with Roe v. Wade (1973) and fabricating a right to same-sex marriage in Obergefell v. Hodges (2015).

In its second attack on Hawley, the Journal acknowledged that the incorporation doctrine and substantive due process are two separate things, but snidely suggested that Hawley had “changed his legal story.”

This is risible. All legal conservatives recognize “substantive due process” as synonymous with progressive activism, exemplified by Justice Anthony Kennedy’s “mystery passage” in Planned Parenthood v. Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is the type of psychobabble folderol that activist judges use to impose their policy preferences on Americans.

Hawley’s opposition to “substantive due process” should be applauded, not decried. Phony theories of constitutional law represent an illegitimate power grab by the imperial judiciary. The Senate can and should ferret out nominees who support this bogus doctrine. The nation would not be in its current predicament if we had more senators of Hawley’s discernment and attentiveness. Please, Senator Hawley, keep it up.

Photo Credit: Scott Olson/Getty Images

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America • Americanism • Center for American Greatness • Post • The Constitution • The Courts • The Left

Clarence Thomas: “Freedom Man,” Free at Last

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In his farewell address, President Ronald Reagan recalled a Vietnamese refugee who upon leaving his leaky boat for the American rescue ship, yelled out, “Hello, American sailor. Hello, freedom man.”   

That image of American military power in the cause of justice is replicated in the stormy seas raised by administrative state today: our “freedom man” is Supreme Court Justice Clarence Thomas.

Reagan appointed “freedom man” to his first executive branch positions back in 1981 and 1982, first to the Department of Education and then to the U.S. Equal Employment Opportunity Commission, where he was chairman. I had the honor to work for Thomas as a special assistant at the EEOC from 1986 to 1990, when President George H. W. Bush appointed him to the D.C. Circuit Court of Appeals. Bush subsequently nominated him for the Supreme Court, where he has served for 28 years. In each position Thomas expanded freedom to the extent his circumstances permitted him.

His latest Supreme Court opinions display his view of freedom in abundance. Out of a tangle of facts and precedent, Thomas has the genius to spot the principle that will allow him to protect and foster fundamental freedoms. Consider two of his February  opinions in the area of free speech and basic constitutional protections, as well as the related area of freedom of religion.

The most noted of these opinions came in a Bill Cosby trial-related case and involved the scope of free speech: Specifically, Thomas raises the question how much free speech protection is available to persons accused of violating libel laws?

Right now, too much: almost anyone, such as a Bill Cosby accuser, could be regarded as a “public figure,” who must prove “actual malice” to sue for libel damages—Cosby’s lawyers therefore easily vilified the victim in this case as a liar. Thomas insists on a reconsideration, to provide non-public figures some real recourse against defamation.

Compiling impressive evidence, he rightly observes, “New York Times [v. Sullivan (1964)] and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” By virtually wiping out state libel laws, they placed an overwhelming burden on those who would sue for being libeled. “If the Constitution [in “the original understanding”] does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Frequent critics of Thomas, such as Obama appointee and confidante Cass Sunstein, of Harvard Law School, praised his “public service” of reopening the case for stronger libel laws.

Sunstein adds, “New and creative thinking, designed to protect people from having their reputations shattered, is very much in order.” Of course Sunstein would use his creative reading of such laws to sue President Trump, when he disparages an opponent. Altogether, as Edward Erler has shown, Sunstein is actually an enemy of free speech, preferring Franklin Roosevelt’s “Economic Bill of Rights” to the original. Under Sunstein’s regime we would have reduced political free speech, less talk radio, and more dominance of progressive dogma.

Another Harvard Law professor, Noah Feldman, contends Thomas wrote a fascinating and bizarre opinion that contradicted itself. After all, Feldman desperately maintains, “An attack on the New York Times v. Sullivan case is . . . an attack on the media.” But there is no contradiction here at all: robust political speech suffers today not from Alien and Sedition Acts but from political correctness.

By denouncing the opinion as “medieval,” Feldman caricatures Thomas’s core principle in his jurisprudence: his rootedness in natural law, the natural rights teaching of the Declaration of Independence. Whether he is defending a baker’s free expression rights in designing and selling his wedding cakes or discouraging reckless, defamatory speech, Thomas is encouraging a freer and more just society.

In his concurring opinion on the constitutional prohibition on excessive fines and thus the issue of civil asset forfeiture, Thomas again demonstrated how his original understanding approach could protect freedom from both prosecutorial and judicial recklessness. Being free of an “excessive fine” was an explicitly protected “privilege or immunity” or right, with a distinct history and embedded in the Constitution, not an invention of the judiciary that distorted the concept of “due process of law.” He thus reaffirmed his critical McDonald case 2010 vote protecting gun ownership rights as a “privilege or immunity.”

Finally, while Justice Thomas maintained his typical silence in the oral argument of he hotly disputed Maryland Cross case, he will likely extend the reasoning of his concurring opinion in a previous case involving a monument with religious significance. The Maryland Cross case involves a 40-foot-high cross on public land, erected to commemorate fallen World War I veterans from the area. Oral argument indicated that the court would likely allow the cross, thus further backing away from its earlier claim that such religious monuments were a prohibited government “establishment of religion.”

The real issue was what reasoning the court ought to adopt. Was the cross acceptable as an instance of “civic deism”? As tradition and history? As a sign of respect at the time of its erection, 93 years ago? Thomas would reject all these weak arguments in favor of the original understanding of the First Amendment: government may not coerce religious belief or a rejection of it. That means religious freedom and therefore no established religion.

Just as free speech protects utterance of offensive opinions, religious symbols that may cause offense cannot for that reason alone be prohibited. This means that monuments with religious meaning may be erected on public land (as in Arlington National Cemetery) and prayers may begin city council meetings without accusation that a state religion is being propounded. More positively put, religion may flourish in the public square.

We will not hear a farewell address from Justice Thomas for a while. For he hasn’t yet spoken all of his piece yet.  

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Administrative State • Center for American Greatness • Democrats • Identity Politics • Immigration • Law and Order • Post • The Courts • The Left

Progressive Leftists vs. Common Sense

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Have you heard this one? A federal judge has ruled that the all-male military draft is unconstitutional.

How did you feel about this bit of news when you first learned of it? Did you think the ruling was ridiculous? An outrage? Did you feel hopeless about what is happening to our country? All of the above?

Not long ago, another federal judge ruled that the Constitution requires that male prisoners who identify as female must be provided with sex-change surgery and hormone-replacement therapy at the taxpayer’s expense, and be transferred to a prison for women.

There is so much to comment on here. For one thing, these rulings make it perfectly clear that we no longer live in a free, self-governing country. Instead of governing ourselves by means of our votes, increasingly we are subject to the dictates of judges who rule over us by managing to find the darnedest things in the Constitution. Like magicians pulling rabbits out of hats, judges can be counted on to astonish and amaze us with the wizardry by which they perform their conjuring tricks.

Read and re-read the Constitution—please!—but you won’t find anything in it to support these rulings. What you will find, however, are the rules that make clear how the federal government is supposed to work—how we are to do elections, how the powers of government are divided among the three branches of government, and so on. You can be sure the Framers did not put these rabbits in the Constitution and that they would be as amazed by these acts of judicial sorcery as you are.

Of course, the problem with these rulings is not limited to judges making free with the Constitution. That alone is outrageous enough, but it’s not enough for them. Isn’t it clear by now that in addition to the initial outrages they are now delighting in rubbing our noses in them? The more outrageous the ruling, the better it is from the progressive point of view.

Obviously, these preposterous rulings make great material to be enjoyed when progressives get together to celebrate what they are getting away with and the frustration of ordinary Americans about what they are doing—but what makes them so enjoyable from the progressive point of view are the affronts to plain common sense. They want us to understand what they are doing to us and what they mean to do.

There are plenty of ordinary Americans who don’t pay much attention to rulings on fine points of the law but who have no difficulty recognizing when common sense is being tossed out the window. They can tell the difference between common sense and nonsense—and they are certain that America’s Founders intended for judges to follow the law as written together with, in the words of Chief Justice John Marshall, “the plain dictate of common sense.” Consequently, ordinary Americans have no difficulty recognizing these rulings for what they are.

By not following the law and ruling against common sense, these decisions and others like them by progressive judges make a double mockery of the law. If the law means whatever they say, no matter how absurd, then we cease to be a people and a nation ruling ourselves under the law.

But wait, there’s more. We are less and less able to rule ourselves even by voting directly on questions that should not even need a vote because they are matters of simple common sense.

In 2000, California voters tried to shore up the common sense meaning of marriage by means of the initiative process. They voted to make it state law that only marriage between a man and a woman is valid in California. That such a law would ever be needed is astonishing. And the vote was 61 percent in favor to 39 percent against—in California! However, that law was soon overturned by the California Supreme Court in a narrow 4-3 ruling—that is, by the vote of one judge.

The voters in California tried again. In 2008, they overthrew the court’s ruling by amending the state constitution—only to have that amendment declared unconstitutional by a federal judge. The judge overruled the voters and, at the same time, the common sense understanding of marriage—using the Constitution to do it. You can’t make this stuff up.

But there is still more yet. Now people in government are trying to take the choice of who is to represent us in government out of our hands. The ruling elite strongly disapproved of the American people’s choice for president of the United States in 2016. They promptly set out on a two-pronged strategy, first to correct this mistake by the voters and second to make sure it would never happen again.

The people in the ruling elite are working hard to prevent President Trump from completing his term in office and they don’t care how they get it done. By attempting to use the 25th Amendment; by deploying Robert Mueller and his gang of partisans subverting justice; by a constant barrage of hatred in the press and among academics and outspoken celebrities, it does not matter. They are all designed to break the president’s spirit, any way, anyhow, and everything at once.

By the way, what is it that they are trying to overturn? Why, the election of the president according to the Constitution, of course.

In addition, so as to make sure it never happens again, our progressive elite is violating one of the most basic rules of common sense having to do with our survival as a country. By throwing open America’s borders and attracting a wave of illegal aliens with promises of sanctuary and free health care and welfare, they intend to make sure no outsider not approved by them will ever be elected to the presidency again. And just for good measure they are working on overturning the Electoral College so that the opinions of smaller, more rural, and more Republican states don’t carry as much weight.

Once upon a time the progressives were all about overturning the Constitution and the principles of the Declaration of Independence. But ever progressing, they are no longer content with putting an end to the regime of the Founders, the regime rightly called the best in the history of the world. That the progressives have moved on to attacking common sense tells us something important. It means they feel certain their victory over the Founders is a done deal, is now a certainty, freeing them up to take on our common sense understanding of the world that makes the Founders’ idea of self-rule possible.

Photo Credit: Brendan Smialowski/AFP/Getty Images

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Center for American Greatness • Democrats • Donald Trump • Post • The Courts

Why Is Trump Folding on Judges?

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Appearances are a large part of politics, and to the average American, President Trump appeared to cave ignominiously to House Speaker Nancy Pelosi (D-Calif.) and her left-wing caucus when he agreed to end the shutdown with no funding for border security, let alone a wall—his signature campaign promise.

So why is he also caving to Democrats when it comes to judges, another bedrock campaign promise to which his fidelity until now has been rock solid?

Carrie Severino of the Judicial Crisis Network reports that a “deal” is in the works between the White House and U.S. Senators Dianne Feinstein and Kamala Harris of California. The deal “would include one nominee chosen by the senators, one by the White House, and a third ‘consensus’ nominee.” The Wall Street Journal editorial board disapproves, and Erick Erickson has also sounded the alarm, noting that Pat Cipollone, the new White House counsel and successor to Don McGahn, seems to be going “behind the president’s back” to get this foolish deal done.

“The art of the deal”? Hardly.

So Much for Fixing the Ninth Circuit
Sadly, the heady days of promising to break up the “Ninth Circus,” the most liberal circuit court of appeals in the country, appear to be far behind us. That wasn’t merely a conservative fever dream, either. Just over a year ago, Rep. Darrell Issa (R-Calif.) officially proposed restructuring the Ninth Circuit and adding five new seats to the largest, most intransigent circuit in the nation.

Since Trump took office, the Ninth Circuit repeatedly has blocked his lawful exercise of executive power—particularly when it comes to immigration—and was slapped down most famously by the Supreme Court in Trump v. Hawaii (2018); there, the court correctly held that section 1182(f) of the Immigration and Nationality Act “vests the President with authority to restrict the entry of aliens whenever he finds that their entry ‘would be detrimental to the interests of the United States.’”

What is the sense in trying to “compromise” with hardline Democrats like Feinstein and Harris, senators who favor judges who would oppose such a clear-cut constitutional understanding of executive power and permissible congressional delegation—and much more besides? Before the 2018 midterms, judicial nominations were rightly fast-tracked to do an end run around obstructionist Democrats sitting on the Senate Judiciary Committee. So why “fix” what isn’t broken, especially when Republicans have an expanded Senate majority, a hugely consequential and atypical result that makes confirming judges even easier than when Trump took the oath of office?

Any “squishes” among the Senate Republicans who might have once worried Chairman Chuck Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Ky.) can now be even more easily overcome, perhaps even bypassed altogether.

Looking for Deals in All the Wrong Places
And yet the plan seems to be forcing an awkward “deal-making” posture when one is neither wanted nor needed. A deal like this would be bad on the merits—the Democrats’ pick will of course be a “living constitutionalist,” and the so-called consensus nominee will invariably tack hard to the left, just like retired Justice David H. Souter did.

Even worse, it’s a strategic nightmare because giving in on judges in this way is like waving red meat in front of a hungry lion; it would incentivize the worst anti-Christian, anti-constitutional impulses of the modern Democratic Party.

Recall how in September 2017, Feinstein felt it would be appropriate to suggest that an eminently qualified nominee, Amy Coney Barrett, now a judge on the Seventh Circuit Court of Appeals, was not fit for the federal bench because of her orthodox Catholic faith. “The dogma lives loudly within you,” Feinstein intoned.

Anti-Catholic bigotry infects not just one but both of California’s Senate seats. Last month, Harris—a 2020 presidential hopeful—joined Senator Mazie “Men just need to shut up” Hirono (D-Hawaii) in attacking another highly qualified judicial nominee, Brian Buescher, because he is a member of the Knights of Columbus, a mainstream Catholic charitable organization.

They wondered aloud whether his Catholic faith would get in the way of his ability to judge cases  “fairly and impartially.”

Thank God that Article VI, clause 3 of the Constitution—“no religious test shall ever be required as a qualification to any office or public trust under the United States”—makes it clear that acting on such hatred of people of faith is impermissible.

The federal courts have been the most important part of our judicial system, and arguably the strongest of the three branches, at least since the Warren Court of the 1960s; it wasn’t meant to be that way, of course—Hamilton wrote in Federalist 78 that judges were meant to exercise “neither force nor will, but merely judgment,” which is why the judiciary would be “the least dangerous to the political rights of the Constitution.”

History has not conspired to prove Hamilton right on this, however; and so the reality is that if you don’t control the courts, you don’t control the major power center in modern America. The Democrats know this; it’s why they are pushing for this phony “compromise.” President Trump should know better and put a stop to it.

If he does nothing, however, he will be signaling that it’s perfectly acceptable to object to nominees on grounds—their religion—repugnant to the Constitution and incentivizing such disgusting tactics. It would be open season the judiciary and the country.

Editor’s Note:  ongoing developmentsSince going to press with this piece reveal that the Trump administration continues to be solid on judicial nominations, despite appearances it could waver. Two of the three original nominees to the Court of Appeals for the Ninth Circuit were renominated (Daniel Collins and Kenneth Lee), but Patrick Butamay wasn’t; he was instead nominated to serve as a district court judge in the Southern District of California. He was replaced by Daniel Bress, by all accounts a solid choice. The partial folding—while not as bad as it was expected to be—is still disappointing because of the identity politics involved. Butamay is a gay, Filipino originalist. He was opposed by Senators Feinstein and Harris because, if he were ever up for a Supreme Court seat, he would have been a serious PR nightmare. This is a lot like when Democrats kept Miguel Estrada off of the Court of Appeals for the D.C. Circuit because they didn’t want a Hispanic originalist within striking distance of the nation’s highest court. After all, Republicans are supposed to hate minorities; everyone knows that!

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