2016 Election • America • American Conservatism • Democrats • The Courts • The Left • Trump White House

The Trump Court: SCOTUS Could Stand Some Disruption

What is Trump going to do?

During the campaign, Donald Trump vowed to “drain the swamp” in Washington, D.C. He was referring primarily to halting the “revolving door” now used by high-level federal apparatchiks to secure lucrative lobbying positions on K Street after leaving government service. This is a laudable and overdue reform. But draining the swamp in Washington will take more than that. Even the president-elect’s support of congressional term limits (which would require an improbable amendment to the Constitution) falls short of promising meaningful curtailment of the federal Leviathan.

To tame the modern administrative state—the metastasized product of too many unaccountable administrative agencies exercising powers far exceeding those granted to the federal government by the Founders—will require a radical transformation of constitutional law as we currently understand it. President Trump can achieve this only by appointing the right justices to the U.S. Supreme Court.

Trump’s electoral success lies in his role as disrupter. The greatest—and most-needed—disruption he could introduce would be to resurrect the long-neglected limits on federal government power that the United States Supreme Court abandoned during the 1930s, to enable the alphabet soup of New Deal agencies and legislation. Accordingly, Trump’s most important appointments will not be his cabinet and White House staff, but his Supreme Court nominees—beginning with the imminent choice of the late Antonin Scalia’s successor.

Trump has compiled what appears to be an excellent list of 21 potential candidates, drawn from sources I have long admired: the Federalist Society and the Heritage Foundation. But Trump’s most trusted advisers must look at the candidates very closely, carefully review their paper trails, and ask them some probing questions—“extreme vetting,” if you will—to make sure whoever he nominates will have the moxie and courage to chart a different course.

Many Republican presidents have been disappointed by their SCOTUS appointments (or at least they should have been). Yet all candidates on a president’s short list “looked good on paper” before ascending to the High Court. Richard Nixon batted .250, scoring only with William Rehnquist (and, embarrassingly, appointing the author of Roe v. Wade, Harry Blackmun); Gerald Ford went 0-1 with John Paul Stevens; Ronald Reagan hit a home run with Scalia, but struck out with Sandra Day O’Connor and Anthony Kennedy (in Reagan’s defense, he’d unsuccessfully nominated Robert Bork); George H.W. Bush made history with Clarence Thomas, but whiffed with David Souter; George W. Bush’s pick of Samuel Alito was a high point of his presidency, while John Roberts inexplicably voted twice to uphold Obamacare and even wrote the widely-panned opinions in NFIB v. Sebelius (2012) and King v. Burwell (2015). (Bush 43 was spared history’s harsher judgment for the ill-considered nomination of Harriet Miers, which he subsequently withdrew in favor of Alito.)

For Trump to succeed in his mission to “drain the swamp,” he has to bat 1.000 with his SCOTUS appointments—the equivalent of picking Scalia, Thomas, and Alito seriatim. All of the candidates on the shortlist (and many excellent prospects who did not make the initial cut) seem to meet the basic requirements of being smart, well-educated, and “conservative” (an imprecise label, as we shall see). Some candidates are “better” than others. What are the specific things Trump should look for in a High Court pick? (Besides appointing Scalia’s successor, over the next four—or eight—years, Trump will likely be able to fill a few more vacancies given the age of the current justices, possibly reorienting the court for decades to come.)

A Word About Terminology

Before addressing that, I want to clear up some common confusion about terminology, so a brief detour: In discussions about constitutional law, the key concepts are “originalism” (interpreting the Constitution according to its meaning when written and ratified) versus “non-originalism” (sometimes referred to as “the living Constitution” theory, which posits that judges should interpret the Constitution according to “the evolving needs of society,” or some similar folderol). In the third presidential debate, Hillary Clinton clearly embraced the latter school, which understandably has widespread support among liberal scholars wishing to impose their personal policy preferences on the rest of the country. In conservative legal circles, and due in no small part to the intellectual force of Justice Scalia, originalism has become the overwhelmingly dominant school of thought. Trump should only consider originalists, but that is just the beginning of the inquiry. Originalism is only a technique for constitutional interpretation; it does not dictate specific results. In navigational terms, originalism provides a general orientation, not exact GPS waypoints. Indeed, originalists can (and do) reach widely differing conclusions about the meaning of particular clauses of the Constitution.

The more salient division among right-of-center jurists and scholars is “judicial restraint” versus “judicial activism,” an important dichotomy that is sometimes confused because different people apply the labels differently. I explored the dichotomy in a 2015 article, “The Quandary of Judicial Review,” and will briefly summarize it here. In exercising judicial review consistent with Federalist  78, a judge should not hesitate to strike down a law that violates a specific provision of the Constitution, but is otherwise bound to enforce the law, despite subjective concerns about the law’s wisdom or necessity. This sounds simple but confounds many scholars on the Right, some of whom oppose any meaningful judicial review, and some of whom abhor “majoritarianism” (i.e., popular self-government).

In discussions regarding constitutional decision-making, the concept of “judicial restraint” (which is consistent with constitutionalism) is often contrasted with its opposite, “judicial activism” (which is not). The terms sometimes lead to confusion when “restraint” is used—incorrectly—to encourage judges to defer to the other branches whether or not a challenged law violates the Constitution. Likewise, the term “activist” is sometimes used—again, incorrectly—as a pejorative whenever a judge overturns a law, even if the law plainly violated the Constitution. As I wrote in National Review:

The Constitution embodies legitimate rights, which the courts are not just permitted, but obligated, to enforce. At the same time, the Supreme Court has invented many “rights” that appear nowhere in the Constitution and are, in fact, entirely the product of the justices’ own personal predilections…. Such predilections have no juridical weight and are entitled to no moral respect. Therefore, if a legitimate constitutional right is implicated, a court does not engage in “activism” by striking down a law that violates it. That is the court’s duty. Indeed, the court would be guilty of passivity (or outright abdication) if it upheld the law. Courts are supposed to uphold laws that do not violate a legitimate constitutional right, no matter how foolish the judges may think they are. That is exercising “judicial restraint” (a good thing). Conversely, if a court fails to strike down a law that does violate the Constitution (as the Supreme Court arguably did with Obamacare in NFIB v. Sebelius [2012]), it is not engaged in “judicial restraint,” but is guilty of passivity/abdication (a bad thing). However, giving the Court carte blanche to overturn laws for reasons not grounded in the Constitution invites judicial usurpation, which is both unprincipled and undemocratic. (Emphasis in original.)

This is not a trifling semantic distinction; it goes to the heart of sound constitutional decision-making. Some “conservative” legal scholars, such as Judge J. Harvie Wilkinson III, embrace an overly deferential role for judges. For example, Wilkinson has defended the execrable decision in NFIB v. Sebelius as an exemplar of “restraint” and has criticized Scalia’s landmark decision upholding the Second Amendment in District of Columbia v. Heller (2008) as manifesting “activism.” Wilkinson’s perspective, shared by some “old school” conservatives, promotes the jurisprudential status quo, and resembles the mentality of Establishment Republicans in Washington: don’t rock the boat.

On the other side of the ideological aisle, libertarian legal scholars who advocate a more aggressive role for judges in all cases deny the existence of judicial activism and regard any form of judicial restraint as “abdication.” Many libertarians view Roe v. Wade and similar decisions as a vindication of “unenumerated” individual rights.

Both camps are wrong. A principled constitutionalist enforces the Constitution (but only the Constitution).

Trump should—through extensive due diligence—make sure that any candidate he appoints to the Supreme Court does not share Wilkinson’s crabbed notion of the proper judicial role (which can be traced back to Progressive Harvard law professor James Bradley Thayer in the 19th century), or some libertarians’ equally mistaken conception of judges as Platonic Guardians (most notably advanced by Georgetown law professor Randy Barnett). Fittingly, misguided scholars from both camps joined the anti-Trump manifesto styled as “Originalists Against Trump.” Trump’s presidential campaign presented him as a “third way”—an agent of change that transcended traditional partisan differences. Trump could extend that vision to a judicial philosophy that is not mired in orthodoxy. Justice Clarence Thomas is the archetype of an originalist jurist who is devoted to the Constitution but does not feel constrained by erroneous precedents of the Court through the doctrine of stare decisis.

Who Then Should Judge?

Now let’s return to Trump’s SCOTUS picks. The greatest impediments to restoring constitutional government in the United States are the Supreme Court’s extravagant interpretation of Congress’s commerce clause power in Wickard v. Filburn (extending federal regulation to wholly intrastate activity) and the astonishing proliferation of federal administrative agencies, which despite being situated in the executive branch exercise both rulemaking (i.e., legislative) and adjudicatory (i.e., judicial) power. In performing these functions, administrative agencies not only lack constitutional authority, they operate in defiance of the separation of powers set forth in the Constitution. Even worse, the Supreme Court has issued precedents (including the Chevron decision) that often require courts to defer to administrative agencies due to the agencies’ presumed “expertise”!

As the volume, scope, and burden of federal regulations—laws enacted by unelected and unaccountable bureaucrats—continue to grow, critics have begun to question the constitutional foundation of the administrative state. Noted constitutional litigator Chuck Cooper and Columbia law professor Philip Hamburger (who wrote a 2014 book called Is Administrative Law Unlawful?) have made a powerful case that administrative agencies, as currently constituted, violate the constitutional separation of powers, echoing arguments that Justice Clarence Thomas has made in recent opinions. Trump should appoint justices in the mold of Thomas, who are willing boldly to reconsider prior SCOTUS decisions that have mistakenly granted the federal government powers in excess of its constitutional limits.

Not all of the candidates on Trump’s short list fit the bill. Some lean toward the Wilkinson model of excessive deference, and others lean toward the libertarian model of insufficient deference. For example, 11th Circuit judge William Pryor, widely regarded as a front-runner, is on record as describing New Deal commerce clause precedents as “defensible.” Granted, federal court of appeal judges are not expected to critique Supreme Court precedents, so the significance of this comment is limited. More troubling is Pryor’s concurrence in a decision that upheld the exercise of federal jurisdiction over an assortment of stray cats belonging to the Hemingway Home and Museum in Key West, Florida, on the ground that the cats “substantially affect interstate commerce.”

In contrast, 10th Circuit judge Neil Gorsuch has thoughtfully questioned Chevron deference and even suggested that Chevron is “no less than a judge-made doctrine for the abdication of the judicial duty.” I haven’t done enough analysis to endorse (or oppose) any particular candidates, although in my opinion the list could profitably be expanded to include some additional prospects, such as D.C. Circuit judge Brett Kavanaugh and Senator Ted Cruz. Bottom line: President Trump faces a momentous decision. Let’s hope he chooses wisely.

2016 Election • America • Democrats • Economy • Government Reform • Republicans • The Courts

The Feds and the Pension Pit

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Over the last several years, the public has become increasingly aware of a fiscal Sword of Damocles hanging over it—state and local public pensions that have promised far more than they will ever likely be able to deliver.

Often under the political influence of public employee unions, state and local governments, including school boards, have been saddling future citizens with substantial debts. Unlike defined-contribution plans, such as 401(k)s, defined-benefit pensions promise a payout to future retirees, based on certain investment returns.

When those returns fail to materialize, however, future generations are left to pick up the tab, at the cost of saving for their own retirements. These promises have been held by the courts to be contractual obligations, alterable only by agreement of both parties.

Right now, by some estimates, the country has up to $5 trillion in promises that it likely won’t have the money to meet. That’s trillion, with a T.

Public pension managers dispute these numbers, and claim that the actual unfunded liability is far lower. To reach that conclusion, however, they make use of an accounting loophole that isn’t available to private pensions, and isn’t available even to public pensions in most parts of the world.

When they calculate how much their promises are worth in today’s dollars, they discount their liabilities—the promises they’ve made—using the expected rate of return. Instead, they should use the interest rates that their state would borrow at, a far better measure of how risky people believe their contractual promises to be. That’s almost always a lower interest rate, which means that in reality, people judge those promises to be worth far more, to be far more reliable, than an investment in the stock market.

There’s another, more insidious effect of using the expected rate of return: it encourages funds to take on more risk, making the promises look smaller, but increasing the likelihood that those promises will go unfulfilled.

Nevertheless, the costs of public pension promises are real, and quite destructive. Money that could be going to rebuild roads and teach kids and keep neighborhoods safe instead is diverted to honor promises made by long-departed politicians to long-retired employees. As taxes rise, businesses and many citizens move on, but the debt remains. They have driven several major cities to bankruptcy, and have wrapped the finances of several states around an axle, most notably Illinois.

While cities can declare bankruptcy, states cannot. Sooner or later, some state is going to come, hat-in-hand, to the federal government asking for a bailout. Citizens of more fiscally responsible states will be asked to pay for the reckless, politically driven promises of politicians such as Mike Madigan, the long-serving Democratic Speaker of the House in Illinois.

This can’t be allowed to happen.

The federal government’s direct power here is limited. It can’t directly order state and local pensions to cut benefits, or close out these oversold promises and convert to defined contribution or cash balance plans. It can’t order them to lower their expected rates of return. But if it has the guts to stand up to the public employee unions and their pensions, the federal government could do a couple of things that would force states to confront the problems squarely.

First, it can have them use the proper discount rate.

In Colorado, the Public Employees Retirement Association (PERA) currently admits to an unfunded liability of roughly $26 billion. Properly discounted, that unfunded liability rises to more than $60 billion. When I present this figure to groups, I point out that this comes to roughly $30,000 in long-term debt per Colorado household, roughly equivalent to adding the cost of a nice kitchen remodel to a mortgage—without getting the new kitchen.

When properly accounted for, the liabilities will be much bigger than the pensions admit to now. The funding ratios will be lower, the admitted unfunded liabilities higher. And the political pressure to do something about the problem will grow overnight.

As valuable as a proper funding ratio is, the question that matters most is this: How likely is it that the pension fund will run out of money, or become dangerously underfunded, at some point in the future?

In 2014, the Colorado state legislature passed a bill requiring PERA to do exactly such an analysis. It found that PERA’s state and school funds—by far its largest—each have a better than 1-in-10 chance of running out of money in the next 30 years, and a 1-in-4 chance of dipping below 25 percent funding, based purely on variations in investment returns.

Pension funds over a certain size should be required to run exactly that same analysis every year.

Finally, Congress should pass and the president should sign legislation explicitly rejecting any federal responsibility for state and local pension debt. Eliminate the temptation to create a moral hazard now, and leave no room for misinterpretation.

Unfortunately, the politics of this last move may end up being the hardest to bring together. The federal government has been slowly extending its leverage over the states for decades, largely through threats to withhold funding for roads or schools unless states take certain actions.

By unilaterally washing its hands of the problem, Washington would also be renouncing both carrots and sticks, diminishing its own power.

That would be, to put it mildly, an exception.

2016 Election • America • American Conservatism • Conservatives • Cultural Marxism • Democrats • Donald Trump • Electoral College • First Amendment • Free Speech • Hillary Clinton • Obama • Republicans • The Constitution • The Courts • The Culture • The Left • Trump White House

The Common Sense Trump-Has-Been-Elected Survival Guide

With Donald Trump’s election, a growing number of websites, organizations, survival guides—and even elected officials—have issued statements of fear, stoked notions of dystopia, and promoted and threatened nullification and secession. Perhaps a different kind of survival guide is needed just now, and it could start with some adult talk and a small dose of common sense.

It should be aimed primarily at college students and administrators as our colleges and universities are the vector encouraging most (but not all) of this immaturity. Heck, it could even join the vast genre of college and university survival guide books—it might even be a best seller. It need not be long, but it is needed. Herewith, a proposed chapter outline:

 

1.  The First Rule of Politics:  Not Everyone Will Agree With You.

I heard this rule attributed to Irving Kristol, and it couldn’t be more needed than now. As a radio host, I can attest that even conservatives need to remember it. Many is the time I will state an opinion and a left-winger or right-winger will say or write, “Seth, you’re wrong,” only to then offer up another opinion. Opinions are not right or wrong, facts are. The question is whether or not an opinion is based on sound reasoning and hard facts. Adults tend to understand this, once reminded; college students, not so much. Why? Echo-chambers, bubbles, and confirmation bias. Nicholas Kristof got this right, writing:

I also fear the reaction [to Trump’s election] was evidence of how insular universities have become. When students inhabit liberal bubbles, they’re not learning much about their own country. To be fully educated, students should encounter not only Plato, but also Republicans.

But, of course, they almost never do. Years ago, it was possible for college students to be taught about and have opinions about Karl Marx while never reading him. Now, they read a lot of Marx and hear almost nothing about, and never read, James Madison.

2.  If the Federalist Papers Are Too Difficult, At Least Read the U.S. Constitution, Including Its Amendments.

It is important to understand that there is no constitutional right for only Democrats or liberals to be heard, run for office, govern, or get elected. I can well-appreciate a college student at, say, age 20 knowing only of the presidency of Barack Obama, but there is a vast history prior to that, as there will be a vast future ahead.

As Oliver Wendell Holmes, Jr. put it: “A page of history is worth a volume of logic,” so let me explain what happened in 1992 on our college campuses. The average 20-year-old college student knew only of the presidencies of Ronald Reagan and George H.W. Bush back then. Then Bill Clinton ran and won. Many of us hated it. But we lived with it, threatening not nullification over whatever Clinton would do, threatening not secession, needing not therapy rooms with puppies and pillows and teddy bears. The world and America moved on. The same took place in 2008, when 20-year-olds who only knew of the George W. Bush presidency saw it yield to Barack Obama.

3.  Pay Especial Attention To The First Amendment.

The same rights that allow you to organize, petition, write, publish, and speak about your opinions do not protect only you or your point of view. Indeed, those rights exist, as Thomas Jefferson put it, to ensure that “error of opinion may be tolerated where reason is left free to combat it.” If this point is alien to you, go back to Rule 1. Then read a great speech by one of our nation’s greatest jurists, Learned Hand—his Spirit of Liberty speech. Focus on this part:

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

If this is still misunderstood, try Supreme Court Justice Robert Jackson’s opinion in a case allowing for the right of school students to refrain from saluting the flag—for it applies equally to those of us who do not think one institution, a college, say, has the right to tell us all what to think, or to speak for us corporately (you see, some of your fellow students are actually in agreement with Donald Trump): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

4.  This Is Why We Have Elections.

Here is how it works in America—but not the entirety of the rest of the world, we get that. So it won’t be true in Cuba, though we know you tend to esteem what the Castros and Che Guevara established there. We govern each other “by reflection and choice,” as Alexander Hamilton put it. We have a system by which our presidential candidates know the rules in advance, rules that were hammered out a bit over 200 years ago. And citizens over age 18 get to vote for the electors in their state who best represent their candidate and points of view. The rules protect all of us, and they were written so that one state and or one region could not and would not dictate national policy for everyone else.

Unhappy that Donald Trump won Michigan and Ohio and Wisconsin? Maybe Hillary Clinton should have spent more time there. The country, remember, is not just California and New York—there are 50 states here. Think the election was bought off by monied and corporate interests? Think again: Hillary Clinton outspent Donald Trump two-to-one. Maybe, just maybe, Rule 1 still matters, and not everyone agreed with the idea of continuing the Obama agenda. Or, as one family in Ohio that hadn’t voted for a Republican since 1976 until this year put it: “Hillary Clinton stopped speaking to us.”

5.  Know Thy Candidate.

While it is a popular notion to “know thyself,” maybe it would do just as well to know who and what you protest. Think good and hard on what it is about Donald Trump’s agenda you fear. Loss of gay or transgender rights (that tends to be a large part of the current guides’ field of concern)? Go back and watch or read his nomination speech in Cleveland. Worried about loss of Obamacare? See how its premiums are soaring and how many of its promises did not meet its reality and if what could replace it might just be a good idea. Worried about President Trump issuing executive orders that might reverse President Obama’s executive orders, particularly on illegal immigrants? Ask yourself why President Obama had the authority to issue those orders in the first place. The answer will be quite revealing: he couldn’t pass his desired outcomes through the normal process and processes of legislation.

That’s right. The DREAM Act, and DACA, never had enough support to pass through Congress. Now consider: the same rights President Obama had to issue executive orders in the face of congressional will are the same rights Donald Trump will have to issue executive orders in consonance with congressional will, but more so. Now, go read Justice Jackson again, this time from a different case:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

In sum, here: ask yourself—what, just what, are you so fearful of? Why are you so willing to go through such extra-democratic and extraordinary efforts of protest over your not getting your way and having your opinion accepted?  Maybe, just maybe, if you read a little history, give a modicum of credit to voters who once supported Barack Obama and voted for Donald Trump, and remember the first rule of politics, you will understand why we all have a right to our opinions and beliefs—and not just yours.

After all, it may just occur to you: you may not be right.

American Conservatism • Conservatives • Democrats • Donald Trump • First Amendment • Immigration • The Constitution • The Courts • Trump White House

Sanctuary Cities and Marquess of Queensberry Rules

cane3In a controversial 1992 free-speech case, Justice Antonin Scalia famously proclaimed that the government may not “license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.”

That is exactly what 21st-century political discourse looks like: One side is fighting freestyle—punching below the belt, biting, doing anything to win—and the other side is lying on the canvas, bruised and bludgeoned, but still holding up the rule-book as a moral triumph of punctilious compliance.

That is the dilemma that so-called sanctuary cities present for the president-elect: Do conservatives choose to follow principles of federalism and permit these cities the sovereignty to flout federal law? Or do conservatives push against sanctuary cities, abridging one of their most sacred constitutional principles in the process?

Socrates’ decision to drink hemlock or flee Athens may have been easier.

As some leading conservative and libertarian scholars recently have pointed out, the Constitution limits how the Trump Administration may go after sanctuary cities, and this illustrates how federalism actually helps to protect vulnerable minorities from majoritarianism. Many progressives are joining the chorus, explaining that while they generally detest federalism, it should be preserved when state and local governments are using their sovereignty to protect ethnic minorities from what they perceive to be federal discrimination and persecution.

This suggests to some conservatives that progressives are now going to join them in following Marquess of Queensberry rules, even when it hurts them. These conservative scholars are the nerds of high school, rejoicing that the most attractive cheerleader asked for help with her homework. “Maybe she finally sees something special in me?”

Not a chance, pal.

Sanctuary Cities and Constitutional Doctrine

Limiting the Trump Administration’s authority over sanctuary cities are two sets of Supreme Court doctrines: (1) the court’s spending power cases limiting the federal government’s authority to impose conditions on federal grants, and (2) the court’s 10th Amendment cases limiting the federal government’s authority to compel state execution of federal programs.

As for the spending power, the court has interpreted this to mean that if the federal government imposes conditions on how state or local governments use federal funding, those conditions must be, among other things, clearly defined, relevant to the purpose of the funding, and non-coercive.

All of these factors would be at issue if the Trump Administration sought to withdraw all federal funding from sanctuary cities, because most federal grants are not clearly conditioned on compliance with federal immigration law. Also, such compliance is not relevant to the purpose of most federal funding. Finally, the threat of a significant withdrawal of funding would likely be deemed coercive, tantamount to the proverbial “gun to the head” bargain.

Although the administration could certainly condition some federal grants on enforcement of immigration law, this would likely not amount to a sufficient loss of funding to induce compliance in many major sanctuary cities like New York, San Francisco, and Chicago. To induce full compliance in these cities, the administration would likely need to withdraw a hefty amount of federal funding. And the court’s precedents pose a substantial obstacle to that course of action.

Likewise, the court’s interpretations of the 10th Amendment bar the administration from requiring state and local officials to report undocumented immigrants. The so-called “commandeering doctrine” prohibits the federal government from enlisting state and local agents to perform the handiwork of the federal government.

These are of course salutary Rehnquist court doctrines, beloved by conservatives, but despised by progressives, who generally loathe federalism and decentralization. The question is whether the Trump Administration should meekly follow these doctrines now, when such a fundamental policy issue is at stake and despite the fact that the other party would never constrain itself in pursuing its own policy goals.

Do you start free-styling or do you continue to follow Marquess of Queensberry rules?

Progressive Inconsistency

In a normal polity, in normal times, where political parties and competing ideologies disagree on particular policies but fundamentally agree on the legitimacy of the rules of combat (i.e., the Constitution), this would be an easy question: conservatives, in that case, would and should honor these spending power and 10th Amendment doctrines.

But this is not a normal polity, and these are not normal times. This a polity where, after a significant number of people claimed to be “literally terrified” that the Republican nominee would not accept defeat, those very people then turned around and refused to accept defeat themselves. These are times when the people who have complained endlessly about federalism now conspire to secede from the union and wage a coup.

This is a polity where fears of white nationalism run rampant, partly because a Jewish man and an Asian pornographic actress made an obscene racist gesture out of a desperate need for attention, apparent mental disability, and an obviously demented sense of humor. And because of this obscene gesture performed privately in a room far from Trump’s cognizance, the president-elect was somehow painted as responsible and compelled to disavow people he doesn’t know and clearly has no interest in ever knowing. Yet when the other party considers making an outspoken black nationalist and anti-Semite its chairman, there is no such outcry.

It has come to this: A lack of a connection with white nationalism requires condemnation and disavowal, but a direct connection with black nationalism and anti-Semitism warrants praise. Got it. Freestyle, meet Marquess of Queensberry.

This is a polity where an actor harangues the vice president-elect and his children for graciously attending the actor’s overpriced, propaganda filled rap-musical. And not only that, but the actor did so condescendingly on behalf of the entirely non-white cast (except for the actor playing the English tyrant, George III) that he introduced to the vice president-elect as “the diverse America” (apparently, “diverse” means “non-white”). Vice President-elect Mike Pence, after years of playing by Marquess of Queensberry rules, claimed he “wasn’t offended,” because apparently condescension and self-entitlement are, in Pence’s words, “what freedom sounds like.”

Freedom also apparently was ringing when this particular actor, this ambassador of diverse America, tweeted that St. Patrick’s Day (a celebration of the patron saint of Ireland) was a sort of Merry Christmas (a celebration of the birth of Jesus Christ) for “black dudes” who enjoy assaulting drunk white women (how is that for cultural appropriation?). This culturally sensitive actor who urged Pence “to uphold our American values” also approvingly had tweeted a call for sexual violence against white mothers as retribution for the tragic death of Trayvon Martin at the hands of an Hispanic male. Again, no outcry from the party of progress, and no apology from the author of these violent and deplorable statements.

Secession, coups, ethno-states, race-and gender-based violence. This is the Democratic Party of 1861. And it is, apparently, still a feature rather than a bug of the Democratic Party of 2016. Another day, another non-disavowal.

But this is not yet another “liberals contradict their own liberal principles” piece. Liberals have been doing that for decades. And conservatives keep pointing it out. And no one cares.

Don’t get me wrong—it is supremely satisfying to point out inconsistency. That is largely what makes watching Fox News so pleasurable for conservatives. You go after those hypocrites Tucker Carlson!

Despite being satisfying, however, nothing is accomplished from such finger-pointing, other than further subjecting conservatism to the constraints of progressivism. Indeed, when conservatives do this, they are implicitly seeking the praise of their opponents—to prove to progressives that they can serve their constituencies better than they can, because conservatives, after all, are the real progressives.

Wait, what? If conservatives are truly progressives, then who are the conservatives? That’s exactly why the current crisis of ideological identity has emerged.

So long as conservatives defend principles such as federalism on decidedly non-principled grounds—for example, by claiming that federalism is really about benefiting Democratic voters—conservatives will lose. And progressives will win because they have no interest in doing this in reverse. Just imagine House Minority Leader Nancy Pelosi (D-Calif.) defending her party’s various positions on the ground they would benefit rural Republican voters. (Once you stop laughing, please continue reading.)

My overriding concern, as a legal scholar and political scientist, is not with the question of which side wins or loses, but with what will happen to American political and legal discourse in the long-run if the only way that conservatives make arguments is by appealing to how their principles favor progressive outcomes. Indeed, there were precious few appeals to federalism when the Obama Administration sought to regulate, for example, public school bathrooms, community residential demographics, and local school disciplinary policies. But some conservatives are now eager to burden themselves with federalism constraints in the arena of sanctuary cities to prove just how much federalism favors progressives. Again, these are nerds offering to do homework for cheerleaders, with the hope it will score them a prom date.

This pattern, I worry, will lead the next generation of conservatives to give up on Marquess of Queensberry rules. Which would not only be a shame for the cause of civility, but a disaster for civilization itself. Is there a way out of this conundrum?

Three Steps to Get Back to Marquess of Queensberry Rules

This problem may very well be too far gone to resolve with easy solutions, but taking the following three steps may go a long way toward rehabilitating our crumbling discourse.

First, stop playing the progressive “find the racist” shell game. Because of the way our cultural landscape is currently configured—in terms of media, entertainment, and academia—there is no way conservatives will win this game. So stop playing it. Calling Keith Ellison a litany of names will do nothing to protect Jeff Sessions. It is foolish to think it will.

At the same time, conservatives should feel less obligated to renounce and disavow every person upon command. Of course, any reasonable and good person should condemn hateful statements and sentiments, but that is different from being at the moral mercy of your opponents, especially when playing that game serves to entrench and institutionalize rules that hurt only conservatives.

Second, conservatives should consider accepting federalism limitations for sanctuary cities, so long as doing so corresponds with empowering states like Arizona and Texas to impose stricter immigration requirements than federal law mandates. Federalism must go both ways. Progressives often advocate federalism only when it favors strengthening civil liberties for particular minority groups. But federalism does not work when it is so narrowly tailored to particular ideological causes.

Rather, federalism works to diffuse intense political polarization only when it permits a broad range of regional disagreement, in both conservative and progressive directions. This means that the Trump Administration should make it a priority to overrule cases like Arizona v. United States (2012), which denied the states the authority to impose stricter immigration requirements than federal law requires. If sanctuary cities can exist, so can Sheriff Joe.

Finally, stop framing federalism and liberty arguments in narrow egalitarian terms. Over the past 25 years, the Republican Party has become preoccupied with framing its agenda to appeal to Democratic voters—for example, in making school vouchers for urban low-income residents the core of its education policy.

But what about school choice for middle-class residents, who overwhelmingly vote Republican, and who are chased out of cities into suburban school districts because they are not eligible for voucher programs and cannot afford the fancy private schools that cater to progressive urban elites? Part of making American cities great again involves diversifying them, ideologically and economically, so that they do not simply represent the Democrats’ barbell electorate, consisting of extreme wealth and poverty. This means framing federalism and liberty arguments in terms of many different causes. Conservatives should fight for tax incentives for homeschooling and private education with the same intensity as they have been fighting for voucher programs over the last 25 years.

I cannot say for sure whether these approaches will resuscitate political civility and ideological fairness. But at least it will mean not lying on the canvas, bruised and bludgeoned, clutching your precious rules in defeat.

2016 Election • America • Donald Trump • Electoral College • Republicans • The Constitution • The Courts • Trump White House

Recovering Constitutional Dignity After the Election

Netflix's "The Crown" can teach American viewers about dignity and constitutional government.

Netflix’s “The Crown” can teach American viewers about dignity and constitutional government.

Every day since the election has brought with it a new affront to public civility. By and large, those in leadership have tried to rise to the occasion; signaling, yet again, Americans may be able to manage a peaceful transition of power.

Nevertheless, tensions have been pervasive. College administrators have excused some students from classes for being too emotionally distraught to learn. Social media has been full of denouncements of the character of the President-elect, his advisors, and those who voted for him. In several cities anti-Trump protests have resulted in vandalism, arson, and other acts of violence. Significant ideological and power struggles are transpiring in both the victorious party and the defeated party. At the risk of missing its constitutional functions, people across the country are even proclaiming the irrelevance of the Electoral College in a modern democracy.

The aftermath of this election should be of little surprise. The campaign was among the most vitriolic and divisive of recent decades. The debates lacked substantive discussion of policy. The bias of the media also fueled Americans’ anger and resentment. Political pollster Frank Luntz recently observed in an interview with CBS News’ “60 Minutes” that mainstream media’s pursuit of ratings and profitability (and even preferred political outcomes) rather than information and knowledge has resulted in a state of affairs in which Americans have increasingly begun “to collect information to affirm themselves rather than to inform themselves.” Americans seem to be turning on one another in ways that reveal a significant loss of their fundamental dignity and respect for one another upon which our constitutional government is ultimately grounded.

How have we come to this? Can we prevent the cutting of the already thin thread that continues to bind us as one nation?

Illumination sometimes comes from surprising places. The Netflix program “The Crown,” which became available for streaming on November 4, serves as a welcome example. The series dramatizes Queen Elizabeth II’s accession and her early years on the British throne and thoughtfully points the viewer to important considerations about the nature of constitutional governance.

Even Americans, who long ago repudiated monarchical government, can profit from considering the constitutional dynamics explored in episode 7, “Scientia Potentia Est” (“Knowledge is Power”). As the episode opens, viewers watch a pre-adolescent Princess Elizabeth taking notes as her private tutor, Henry Marten, vice-provost at Eton College, teaches her the fundamentals of constitutional law. With reference to Walter Bagehot’s classic The English Constitution (1867), he relates that there are two elements of the constitution, the efficient and the dignified. The efficient has the power to make and execute policy and is answerable to the electorate. “What touches all,” he intones, “should be approved by all.”

By contrast, the dignified, with its center in the Crown, gives origin and legitimacy to the efficient and is answerable only to God. The constitution only works—and the young princess is told to underline this—when the efficient (the government) and the dignified (the Crown) trust one another. “The Crown” explores how the young Queen applies this early lesson in learning to perform her constitutional role and invites us to reflect on our own constitutional order.

Significantly, unlike our British cousins, Americans have no Crown that serves as a reservoir for the dignity of our Constitution. Bagehot’s treatment of constitutional government compared the English and American constitutions. “Royalty,” Bagehot wrote, “is a government in which the attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is divided between many, who are all doing uninteresting actions. Accordingly, so long as the human heart is strong and the human reason weak, Royalty will be strong because it appeals to diffused feeling, and Republics weak because they appeal to understanding.”

Did the American Founders leave us at a little noticed disadvantage when they bequeathed us a republican form of government with its comparatively weak executive? If Bagehot was onto something here, Americans must deliberately and continually reflect together upon the source of authority behind our Constitution, especially when we transfer executive power. As the real and symbolic power of the presidency has expanded in recent decades, our presidential elections have generated increasing emotional heat and have distorted our constitutional design.

Where do we Americans look to find the functions of dignity within our Constitution—the function that helps sustain allegiance to our government even as leadership changes hands? American historian Forrest McDonald pointed out that the office of the president of the United States combines a ceremonial function with a governing function. The ceremonial function is that which moves the human heart to loyalty and so we are tempted to look to the president for the dignity necessary to inspire our trust. Too often, however, we are sorely disappointed when we do so. While some presidents have been more personally dignified than others, the contentiousness of American politics has long dragged presidents into the fray, diminishing the office as a wellspring of constitutional legitimacy.

If we must not look too much to the presidency to unite us, perhaps we might look to the Supreme Court, where the black robes of the Justices inspire a certain sobriety and dignity. The Judiciary, too, fails the test—especially since we increasingly have come to look to the courts for obiter dicta on policy that go far beyond their limited role of deciding the cases before them. When new rights can be found in penumbras and English words such as “tax” and “marriage” can be reconstrued at will, the Supreme Court shows itself accountable not to higher law and deliberative reason, but to the whims and winds of public opinion. And, finally, Congress, as the lawmaking body, serves as the “efficient” department of government, not the “dignified”—since it is by definition the people’s branch and is accountable most directly to the electorate.

Not in the executive? Not in the judiciary? Not in the legislature? Where does this leave us?

If, as some among us begin to fear, the very legitimacy and authority of our government is withering, where do we find the roots of constitutional dignity to feed and water them? The answer is, of course, right before us in the preamble of our written Constitution. “We the People,” it states, are the source of constitutional legitimacy. The role that the Crown plays in the English constitution was largely democratized in the United States, relocated in the consent of the people as reflected by their representatives during the ratification of the Constitution. That Constitution embodies the solemn will of the American people and it is sustained by our ongoing consent, which demands a measure of affection, but moreso requires us to seek information and understanding.

American constitutional arrangements from the beginning differed from those taught to the young Elizabeth. Americans sought to adopt the long-standing British style of  constitutional separation of powers, but with modifications. Americans eliminated the Crown, replacing it with a republican form of government, one that possessed democratic elements to make real government by consent. Along with monarchy, the founders did away with special birthright political privileges, the aristocracy of birth. In its place Americans embraced an idea of a citizenship that encouraged a new kind of aristocracy—one of talent and virtue where people properly educated and habituated in the responsibilities of their office created the bedrock of the American republic. In some ways those responsibilities were daunting, for the constitutional health of the American experiment depended upon a combination of informed suffrage and the steady engagement in civic good works.

The upshot is that American government is only as sound as the constitutional habits of its people. The dignified element of America is in us, its people, and it sits alongside those parts of us that are merely efficient. Alongside their brashness, working, hustling, vying, trying to make a living and getting things done, our forbears possessed a constitutional sobriety, a capacity for disinterested interest, a jealousy for hard-won freedoms, an eternal vigilance for the rule of law, all of which constitutional habits were brought by the majority of Americans under the guidance of conscience, that is, submitted for accountability to God.

The American constitutional settlement, in other words, called upon its people not only to reason together but also to inform their consciences in light of their faiths and to bring prudence to bear in their daily lives. These habits were to have bearing on both their private commercial and social engagements and their public and political engagements. This complex responsibility of American citizens, always messy in practice, was sustained for a long while on a spiritual and moral capital that has long since diminished under the corrosive effects of the false civil religion of progressive politics, by the misbegotten accretion of power and patronage in Washington, and by an increasingly unaccountable regulatory state. Where citizenship is largely reduced to voting and lobbying a centralized administrative state, the civic habits that renew constitutional discourse and unite us as a people and a polity atrophy. While America was in fact something new in History, it turns out that it does not stand outside History; we are not immune from the quite predictable and human corruptions of power, money and bureaucratic hubris. When the minds of the people become servile, we begin both to desire and to fear the emergence of a despot.

By many lights, neither of our presidential contenders appealed during the campaigns as a potentially unifying president; both seemed to cast shadows in the minds of different constituencies of a coming despotism. Only time will tell whether President-elect Trump and his administration can rise to the demands of restoring constitutional governance. In the meantime, it is up to us, the American people, to step back from the precipice and to reconsider the necessary elements of our Constitution and the ways they should work together. Out of what seems a moment of crisis to many, we also have an opportunity to begin the process of restraining the imperial presidency, restoring the rule of law over that of men within our courts, and demanding more effective lawmaking from Congress.

For these good things to happen “We the People”—in our own hearts, minds, streets, shops, neighborhoods, towns, and cities—are going to have to begin again to listen to and learn from one another. If we can do so; if we can stop shouting to be heard and instead listen for what we might learn; if we can lend a hand to those around us in distress; if we can try to figure out local solutions when we see a local problem rather than looking first to Washington; if we can bow our knees and our heads and reconnect to the dignity that has its source in and is accountable to God, in due course we shall begin to renew those habits needed for reconciling with one another and reweaving the constitutional fabric that has made America a beacon of liberty, prosperity, and hope. To vote is not enough; now comes the task of practicing with dignity the difficult art of self-governance.

2016 Election • Conservatives • Donald Trump • Republicans • The Courts • The Culture • The Left • Uncategorized

Make the Supreme Court Great Again

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It’s called “Make the Supreme Court Great Again.” Or at least that’s how President-elect Donald Trump would likely describe the task at hand.

Let’s start with what we know about this task.

We know that the court’s future is something that resonated particularly strongly with Trump voters. According to national exit polls, 21 percent of voters thought the Supreme Court was the most important factor in making their decision, and 57 percent of that 21 percent voted for Trump.  

We also know something about Trump’s potential nominees. Based on expert advice from the Federalist Society and Heritage Foundation, Trump in May released a list of 11 highly qualified conservative judges as an example of the kinds of judges he would consider nominating. And after that list was criticized for being too white, he added a more ethnically diverse list of 10 more lawyers and judges. So we know that Trump’s picks will most likely come from that group of 21.

But here are several things we do not know about Trump’s judicial appointments.

How Many?

Trump often talked of the next president getting three, four, or possibly even five Supreme Court appointments. Each time I heard him say that, I would turn to my wife and ask: “Is he planning to off someone?” Because, you know, after that Fifth Avenue comment, and given that I take everything Trump says literally, I was genuinely frightened.

The truth is that in his first term he will likely have only one appointment (filling the vacancy left by Justice Scalia’s death in February), because the three oldest justices are Ginsburg (83), Kennedy (80), and Breyer (78)a group not likely to retire under a Trump Administration.  

Indeed, given that Ginsburg wore her dissent collar (which every good jurist should have in her wardrobe) the day after the election, that she “can’t imagine what the country would be with Donald Trump as our president” (she should probably start imagining it), and that she does not “even want to contemplate” what a Trump presidency would mean for the court (she should probably start contemplating that, too), I would say the odds of the Notorious One leaving her position voluntarily under Trump are about as low as her namesake resolving that East Coast-West Coast rivalry.

The same is likely the case for Breyer, who, like Ginsburg, is a liberal President Clinton appointee, and to add to that, the world’s biggest Francophile who believes global law is American lawno, not a Trumpkin. The same can be said for Kennedy, who, despite being appointed by President Reagan, has moved substantially to the Left and now positions more as a center-Left libertarian.

So while Hillary Clinton likely would have had the four picks that Trump declared to be at stake in this election (and in that sense these spots truly were at stake), it is doubtful that President-elect Trump will have more than one pick in his first term. There has been speculation of Thomas’s retirement, which does seem more likely after the Trump election, even at Thomas’s relatively young age of 68.

But even with a Thomas retirement, Trump would not be able to budge the ideological tilt of the high court, given that Thomas and Scalia have been the most conservative voices on the court for the past 25 years.  

That chance, however, would become much more likely were Trump to have a second term, by the end of which Ginsburg would be 91, one year older than the oldest justice ever to sit on the court, and Kennedy and Breyer would both be in their late 80s.

An oft-overlooked part of this story are the lower federal courts, which became nearly three-quarters liberal under Obama. Trump will likely be able to move the overall ideological makeup of the lower courts back toward the center.

What Kind of Judges Will Trump Pick?

It’s called “Make the Supreme Court Great Again,” and that requires making the Supreme Court justices great again. But what makes for a great justice? Given that the Left has controlled the entire university system for the past 50 years, the greatest judges, and the greatest judicial decisions, are those that best represent Left-wing causes.

And guess which judges and judicial decisions are the worst? You got itthese are all conservative. Isn’t ideological control an amazing thing? What they say is the truth turns out to be the truth.

As a result, anyone educated within the American system can succeed only by extolling progressive judges and decisions as the best, while condemning conservative ones as the worst. By the time most of us have graduated from college and law school (some of us have a Ph.D too—that is the sound of me brushing the dirt off my shoulder), we have, consciously and unconsciously, accepted this paradigm.

The only way for Trump to make the Supreme Court justices great again, under the Right’s criteria for greatness at least, is to reject the Left’s criteria.

After Justice Scalia died, for example, a Georgetown Law Professor wrote that the university should not mourn Scalia’s death because he defended “privilege, oppression and bigotry.” The Right’s response to such shaming cannot continue to be what it so often isand that is to cower in the fetal position, begging for forgiveness, willing to disown anyone in return for the Left’s absolution.  

Trump is just the person to reverse this trend. Indeed, Trump has consistently said that Justice Scalia is his favorite justiceunfounded charges of “privilege, oppression and bigotry” notwithstandingand that he intends to nominate judges of Scalia’s ilk.

But what does Trump mean by this? My sense is that Trump is not referring to the doctrinal niceties of Scalia’s views on administrative law, but rather his jurisprudential attitudenamely, his famously confrontational and politically incorrect approach in sparring with lawyers as well as his colleagues. Trump and Scalia, both Queens natives, and separated only by a decade, share an old-fashioned, no-holds barred, commitment to winning; mediated by an unusually charismatic and acerbic wit; rounded out by an allergy to the hyper-sensitivities that pervade 21st century American discourse. The New York that looked like this, and not this.

What this means is that we won’t get “country club” conservative judgesthe type that ends his Obergefell v. Hodges (2015) dissent by extolling same-sex marriage but then sternly warning gays and lesbians not to think of the Constitution while celebrating their newly created rights. The “country club” conservative is the father of 2016 America: “You can stay out past your curfew, use any drugs you want, and sleep with whomever you want, but please, darling, don’t think that I approve while you do these things.” Ok, thanks dad!

This is the conservative Democrats love, just as 2016 dads are the fathers prison-bound boyfriends love. Whatever happened to all those “Paul Ryan” types, the good principled conservatives who truly care about conservative values?

As it turns out, to be a principled conservative in 2016 is to care about progressive values, with the only distinction between the Left and Right being that the Right more resolutely, devoutly, and universally espouses the values that the the previous generation of Progressives promulgated. These conservatives are the confused children, regurgitating their parents’ outdated hippy beliefs with an amped-up fervor and ferocity, eager to update their moral calendar to the current year when ordered to do so.  

This ruse, designed, quite effectively, to have Republican functionaries do the bidding of the Left, will not work on Trump. And that will make Trump’s judicial picks quite different from, say, Jeb Bush’s.

Perhaps even with the new electoral map, and the emerging blue-collar contingent of the Republican Party, we can expect Trump to make good on Scalia’s criticism in Obergefell of the court’s unrepresentative demographics. Despite a preoccupation with ethnic diversity, few seem to care that the court lacks any other form of diversity. As Scalia explained, the high court consists of nine elite lawyers who attended either Harvard or Yale Law; eight grew up on the two coasts; and four hail from New York City. Indeed, Scalia wrote, there is not a single Southwesterner, evangelical, or even a Protestant (a group that constitutes more than 50 percent of the nation).

President Obama did not diversify the court, in any of these ways, by appointing Justices Kagan (Jewish, New York City, Harvard Law) and Sotomayor (Catholic, New York City, Yale Law). I wouldn’t be surprised if Trump, the diversity anti-Christ, added more meaningful diversity to the court than Mr. Diversity himself. Perhaps a Nino of the South. Bubba Scalia?

Which Issues Will Be Central to Trump’s Constitutional Vision?

It’s called “Make the Supreme Court Great Again,” and this requires making constitutional law great again, which means making it once again resonate with this nation’s heritagenot abstract principles divorced from our lived experience and accumulated wisdom as a people. To restore constitutionalism in a crumbling culture filled with this, that, and lots more of this, judges and elected politicians alike must fight for the nation’s heritage and people, without adopting half of the Left’s narrative and then apologizing for not adopting the other half.  

Spelling out in detail how this could be done would require an entire essay (or a book, forthcoming) on the subject, but here I will simply alert the reader to the fact that Trump has outlined the general contours of this vision, in which he proclaims that he will nominate judges who interpret the Constitution according to its “original public meaning.”

This is of course par for the course for a Republican candidate, but what may be telling is that for such a short statement it devotes significant attention to federalism and local autonomy. These are issues that Republicans have long endorsed in form, but have recently ignored in effect, often times accepting the Left’s progressive agenda in expanding congressional power, broadening administrative agency discretion, and diminishing local autonomy.

Trump clearly lacks the legal acumen of his scholarly predecessor (who somehow was offered a tenure-track position at University of Chicago Law School without publishing anything, even as a student, more than six pages long).

But if there is one principle underlying Trump’s constitutional thought, or perhaps we should call it something more primordial, like “constitutional attitude,” it is this: The touchstone of law is the sovereign consent of the people.

We see this in Trump’s support of Brexit, his consistent opposition to Common Core in favor of local education, his faith in local communities and law enforcement, and his insistence that he was but a messenger for a larger movement of the people.

This touchstone of law is of course Jefferson’s entire basis for the Declaration of Independence, that no political community has the authority to govern another, as well as Lincoln’s argument against slavery, narrowed from Jefferson’s focus on the community to apply to the individual.

This is not a bad principle for the Party of Lincoln to hail once again in making America, as well as the Supreme Court, great again.