Category Archives: JUDICIAL POWER

The Four C’s Of The Impeachment Sham — Constitution, Corruption, Comity & Coup (by Wolf Howling)

The House is considering three articles of Impeachment.  The Constitution is at issue in questions of Obstruction of Justice, Contempt of Congress and the form of the Senate Trial.  Comity and Corruption are at issue as to the Bidens and Abuse of Power.  And is this is an unlawful attempted coup?

The Constitution

The House is considering three Articles of Impeachment, one of which is expected to be for contempt of Congress.  The House claims that Donald Trump refused to honor lawful subpoenas for testimony and documents as pertains to the Ukraine. Was Trump within his rights to do so?  That is wholly a Constitutional question.  It is also closely related in at least one relevant part to a likely Second Article of Impeachment, namely Obstruction of Justice as to the Russian Hoax inquiry.

The only vote the House of Representatives has held to authorize an impeachment inquiry of Donald Trump was defeated overwhelmingly in January, 2017.  In response to the Ukraine IC IG matter, Nancy Pelosi, as Speaker, unilaterally declared an “impeachment inquiry” on September 24, 2019, and the House immediately began issuing subpoenas for witnesses and documents.  As to the latest vote held a week ago to formalize the procedures being used in the ongoing Star Chamber, Speaker Nancy Pelosi was adamant that the Resolution was not an authorization of an “impeachment inquiry.

Can anything less than a vote by the entire House of Representatives to authorize an “impeachment inquiry” be considered Constitutionally valid?  As I’ve discussed before, this is far from mere form.  If the House of Representatives approves a resolution for an impeachment inquiry, the House gains a power that it, by the explicit terms of the Constitution, does not otherwise possess — the judicial power to enforce subpoenas and requests for documents on matters outside its Art. I, Sec. 8 enumerated powers.  Without that power, the White House was acting lawfully when it refused to cooperate.  Tellingly, the House, rather than take those subpoenas to a Court to enforce them — and risk having a Court declare their proceeding unconstitutional — appears to be simply rolling all but one of their refused “subpoenas” into an contempt of Congress charge.

Then there is Part II of the Mueller Report.  We can expect the House to adopt Part II virtually in toto as an obstruction of justice charge.  There is a twist on this, however, and it is where this overlaps with the Contempt of Congress charge.  Without the judicial power of an impeachment inquiry, the House has no power to subpoena the Grand Jury testimony that Mueller referenced in his report.  The House subpoenaed the Department of Justice for that information and got the matter heard before an Obama judge (yes, John Roberts, there are progressive judges who rule by ideology, not the law) who ruled that the House was authorized to receive the material — and thus that their current “impeachment inquiry” was constitutionally sufficient.  The White House made an emergency appeal to the D.C. Circuit Court, which granted a stay, and the matter is now to be heard on November 12 before the D.C. Circuit. If the D.C. Circuit affirms the lower court’s ruling, the Trump administration will assuredly bring it to the Supreme Court, but there is no guarantee that the Supreme Court will take up the case.

All of this brings up a huge, core Constitutional issue:  Which branch of government has the power to determine the meaning of the Constitution — specifically in this case, when the question is whether the House may claim judicial powers without a vote of the House of Representatives to authorize an impeachment inquiry? There is no doubt that Articles of Impeachment (other than Contempt of Congress) that the House votes upon would be facially constitutional.  So this question applies only to whether the President may be validly held in contempt of Congress for failing to cooperate with an impeachment inquiry that was never authorized by a vote of the full House of Representatives.

The Judicial Branch long ago claimed for itself the power to definitively interpret the Constitution, but that right to do so appears nowhere in the text of the Constitution.  Can the Senate summarily dispense with any claim for Obstruction of Justice as to this “impeachment inquiry” because the Senators believe that the House acted “unconstitutionally?”  Can the Senate do so in the face of a D.C. Circuit Court opinion to the contrary?  Could the Senate do so in the face of a Supreme Court refusal to hear an appeal from the D.C. Circuit?  And lastly, could the Senate do so even if the Supreme Court hears an appeal and concludes that the obscene House Star Chamber proceeding meets the standards for constitutionality?  Those are all valid questions that I believe should be answered in the affirmative, but that could have long term ramifications for how our nation operates.

A second Constitutional question that touches on this and all of the Articles of Impeachment concerns whether Donald Trump will be afforded the same due process rights at trial (rules of evidence, right to bring definitive motions, etc.) that are afforded all Americans in court?  As Supreme Court Justice Story said, in 1833 when remarking on impeachment:

It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail. For impeachments are not framed to alter the law; but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes.

Under current Senate Rules, the President does not explicitly have those protections.  Under the modifications suggested here, he would gain them.  Assuming that the Senate does adopt those changes then before trial begins President Trump should move to dismiss Contempt of Congress Charges for failing to state a legal claim — i.e., the House did not vote to authorize an impeachment inquiry, and thus the President did not obstruct a lawful process.  As to the obstruction of justice charge, President Trump should make a motion to dismiss the claim on the grounds that, even assuming all of the facts alleged in the Mueller Report to be true, it does not as a matter of law show a violation of the law or a political offense for which impeachment is warranted.  President Trump committed no underlying crime.  President Trump substantially complied with the investigation and he committed no act that resulted in the investigation being hindered.

Corruption & Comity

A third Article of Impeachment, according to Breitbart, will be for Abuse of Power.  The House’s Star Chamber proceeding is likely to result in a claim that President Trump abused his power by withholding aid from Ukraine subject to them investigating Joe and Hunter Biden for corrupt practices.

This is yet another Article that should be dealt with on a motion to dismiss.  The President’s practice and authority to negotiate with foreign countries for the aid they may receive from America is a well-established power of the Presidency, one that has been exercised by numerous other Presidents.  Thus negotiating foreign aid with the Ukraine cannot itself, be grounds for impeachment.  It is axiomatic that, to again quote Justice Story, impeachment may not be used tomake that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person.  And in fact, the aid was ultimately released in full to the Ukraine in September, 2019, so there is no Constitutional concern with Congress’s power of the purse, nor any legal concern with the Impoundment Control Act of 1974.

That leads to the next question, whether what Trump was negotiating for — the facts surrounding Joe and Hunter Biden in the Ukraine and whether it involved corruption — was an improper purpose.  (It should be noted that Trump never in the transcript explicitly said that Ukraine’s receiving the money hinged on looking into the Biden matter. Indeed, it’s a stretch even to read into the transcript his having said such a thing implicitly.) As a textual matter, Article II § 3 of the Constitution requires the President to “take care that the laws be faithfully executed.”  So when the President looks into possible legal violations, he is acting in fulfillment of his Constitutional duties.

That leaves the last question: Did President Trump have reasonable grounds to suspect that Joe Biden violated federal rules of ethics, and perhaps American laws, regarding corrupt practices?  That is a factual matter. Trump does not need to show actual guilt.  But he needs to be able to show that, based on the facts as he knew them, a reasonable person would suspect that there was enough evidence of corruption that further investigation was warranted.

As a threshold matter, the Joe and Hunter show went far beyond Ukraine.  It was both foreign and domestic.  As to the former, when Daddy became Vice President and was given control of foreign affairs in certain countries,  Hunter Biden became Joe Biden’s little lamb.  With apologies to Sarah Hale and a hat tip to the poetess Bookworm:

Joe Biden had a little Hunter,
That filled its nose with snow,
And everywhere Joe Biden went
Hunter was sure to go;
He followed Joe to Ukraine,
Romania & China too;
He sold his daddy’s name there,
But saying so sparked a coup.

Hunter Biden’s escapades are well documented in the Ukraine, Iraq, China and Romania, for we know that he followed his father into those countries (sometimes flying into them with his father on Air Force Two) and immediately struck lucrative deals with corrupt politicians or, in the case of China, the government itself.  Standing alone, these undisputed facts stink to high heaven.  The mere appearance of corruption is an ethical problem for Joe Biden.  It becomes a legal problem for Joe Biden if he used his position as Vice President to further his son’s enrichment or to protect him from investigation. And to be clear, based on the facts as we know them, if Trump and Trump’s children had done what Joe and Hunter Biden did, the call to impeach and jail him would be deafening.

When it comes to Ukraine, we know Hunter Biden was hired to sit on the Board of Bursima, a Ukrainian energy company owned by a man who is a suspect in billions of dollars of government corruption.  We know that Hunter Biden was not qualified for such a seat beyond his familial relationship to Joe Biden.  We know that people associated with Bursima then dropped Hunter Biden’s name to lobby the State Dept. in order to quash the corruption probes targeting their client.  We know that at least one American official raised this as a problem to Biden’s office.  And we know . . .

It is in fact an open question, not yet definitively answered, whether the prosecutor whom Joe brags about getting fired had an active corruption investigation into Bursima — and perhaps Hunter Biden as well.  That was the question Trump seemed to be asking the President of Ukraine to find an answer to in his 25 July phone call.  If so, there is more to investigate, such as what did Joe Biden know and when did he know it.

But according to Democrats, it is an abuse of power even to ask those questions.  They can go pound sand.  No one is above the law, not even a Democrat candidate for office.  The only thing Trump asked for is information from an investigation.  Was that pretextual or warranted?  The first might arguably be grounds for impeachment, the second cannot be.  Thus the only factual issue to determine whether to proceed to a full impeachment trial on abuse of power grounds is whether Trump was justified in seeking an investigation of Biden’s seemingly corrupt dealings.

Bottom line, we need to hear from Joe Biden and Hunter Biden, under oath at any Senate trial, to determine whether there was sufficient appearance of corruption for a reasonable person in Trump’s shoes to investigate.  Indeed, the rule changes I suggested for the Senate’s impeachment trial are in anticipation of precisely that reality.

Democrats are going nuts over that issue.  This from the Daily Beast, warning that “comity” in the Senate would be irreparably damaged by forcing the Bidens to testify:

Senate Democrats issued stark warnings on Wednesday that Republicans would severely damage the institution of Congress if they acquiesced to a push from Trump allies to haul former Vice President Joe Biden and his son Hunter for testimony about their actions in Ukraine.

A top Biden ally, Sen. Chris Coons (D-DE), told The Daily Beast that calling the 2020 presidential contender—who served for 35 years in the Senate—and his son for testimony “would be literally rolling a grenade down the aisle of the Senate” that would have “lasting consequences” on the upper chamber’s ability to work together.

“Look, Joe Biden is well known, widely respected, and frankly beloved by many in the Senate on both sides of the aisle,” said Coons. “The impeachment process is already disruptive enough. I think we should be approaching it with seriousness, not by entertaining conspiracy theories that are utterly unfounded. And I think it would be a very unfortunate move.”

Right.  As if the left overturning an election and pushing us to the brink of a second civil war over the proposition that they are above the law while the rest of us are below it is not exponentially beyond concerns of “comity” in the Senate.  Truly, screw these people.

Coup

And finally, here’s a question to pick up after what promises to be a failed impeachment attempt.  Mark Zaid, attorney for the whistle blower who orchestrated this Ukraine madness, tweeted in 2017:

#coup has started. First of many steps. #rebellion. #impeachment will follow ultimately. #lawyers https://t.co/FiNBQo6v0S

— Mark S. Zaid (@MarkSZaidEsq) January 31, 2017

Zaid has since claimed that what he meant only a “legal” coup. There is no such thing. A coup is, by definition, an “illegal seizure of power from a government.” Now, if what Mr. Zaid had in mind was an unlawful abuse of the laws of this nation to effect a coup . . . that is still not legal. It is an act of sedition punishable at law.

We certainly now have evidence of Mr. Zaid’s state of mind. We have reason to suspect that his client was likely previously involved in the leak of classified information to the press in order to damage President Trump and may have spied on Trump on behalf of the FBI, both illegal acts.  Then we have long standing ties between the whistle blower and Adam Schiff’s staff and we have Adam Schiff’s own statement that they coordinated filing a whistle blower complaint.  Lastly, we have a grossly legally deficient whistle blower complaint that should never have been filed as such, and certainly never should have been addressed to Congress as a finding of urgent concern.  The IC IG did not conduct due dillegence in his investigation.

Now, that could all mean nothing.  Or, it could mean that certain people were conspiring to effect a bloodless coup.  There is enough here to warrant an investigation to determine the truth.  And prosecution would be warranted if what we discover is in fact a seditious conspiracy rather than a series of simple errors.  That would in fact be an unlawful coup.

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On Constitution Day, Leftists assault the Constitution

For most of America, September 17 was “Constitution Day.”  For progressives, it was a day to launch a multi-pronged assault on the Constitution.

On September, 17, 1787, the delegates to the Philadelphia Convention signed their finished product, the Constitution, and released it to the states to consider for ratification. It would be a year before eleven states ratified the Constitution, passing it into law, and three years before all thirteen states ratified the Constitution. It would be four years before the states ratified ten of the first twelve proposed Amendments to the Constitution, creating the Bill of Rights.  Regardless, it is the 17th of September that we commemorate as “Constitution Day.”

But not the progressive left.  To the extent they spent any time at all referencing the Constitution this past week, it was to attack it.  Call it “Un-Constitutional Day,” if you will. The most direct attack was an attack on originalism — the truism that the Constitution must be interpreted as closely as possible to its commonly understood meaning on the day it was signed in 1787.  Next, the Left, through its house organ, the New York Times, launched an attack on due process, with Democratic candidates for President calling for  Supreme Court Justice Kavanaugh’s head.  And the last attack, without doubt the most dangerous in the near term, was a renewed call in the New York Times to pack the Supreme Court with progressive ideologues.

An Attack on Originalism.

At The Hill, a progressive lawyer, Kim Wehle, argues that “Justice Gorsuch is wrong — ‘originalist’ judges make stuff up too.”  What is she talking about?

Supreme Court Justice Neil Gorsuch recently authored a book, the title of which, A Republic, if you can keep it, is from a famous Ben Franklin quote.  At the end of the 1787 Constitutional Convention, Franklin, who was justly famous for his wit and brevity, was asked what type of government the men at the Convention had created.  Franklin replied “A Republic, if you can keep it.”

What Franklin meant was that, in the words of Prof. Richard Beeman, “democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.”  Not surprisingly, Gorsuch’s book deals with his judicial philosophy of originalism as the Foundation of our Republic and the threat that progressives’ “living Constitution” obscenity poses to our Republican form of government.

Two paragraphs from Wiki (citations and links omitted) do a good job of summing up the issue and presaging Gorsuch’s recent book:

In a 2016 speech at Case Western Reserve University, Gorsuch said that judges should strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”.

It’s not clear whether Kim Wehle deliberately or from lack of acumen fails to understand this principle. What is clear is that, on Constitution Day, she claimed that the living Constitution philosophy is no worse than Gorsuch’s originialism because originalist judges also “make stuff up” as they go along — just as, she fully admits, progressive judges do.  That is a calumny.  Writes Wehle:

Accordingly, Gorsuch reportedly tells his law clerks: “‘Rule No. 1: Don’t make stuff up,’” and “‘when people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.’”

Here’s the problem: The implicit suggestion that the law and the Constitution are black and white — and that all that honorable judges need to do is apply its plain language and move on — is a myth.

That is a horse manure statement of the issue.  No one, not least of all an originalist, claims that the law is black and white.  Teasing out the most likely meaning of a clause, a sentence, or a paragraph as the Founders drafted it and as the people who voted upon it understood it is not easy and, by the nature of the evidence relied upon, subject to a range of interpretations.

It helps the originalists that the Founders left us a fair number of clues about what they thought and intended. In addition to focusing on the words themselves, as those words were understood at the time and as were voted upon at the Convention and then as finalized by the Committee of Style, jurists can look to a few contemporaneous sources who describe the debates at the Constitutional Convention.  They can also read what people wrote after the Convention but before ratification, such as the Federalist Papers and the Anti-Federalist Papers, which argue about the provisions and their meanings.   There were debates in the state conventions. And lastly, there is the entire sum of historical events that were known to the Drafters and the people of the era and that we can assume had an impact on the way in which they drafted the Constitution, whether they mention these events or not.

The key to this “range of interpretations,” though, is that every one of them is anchored firmly in the history and soil of the American colonies in 1787.  This history ensures that an originalist change has a limited range of permissible interpretations beyond which he may not go. Even within those parameters, the judge is further limited by the mandate that he choose which interpretation is most accurate, not which his conscience finds most desirable. That is not, as Ms. Wehle claims, “making stuff up.”  And indeed, it often means that originalist judges will in good conscience disagree.  As Ilya Shapiro recently opined at the USA Today, “Liberal Supreme Court justices vote in lockstep, not the conservative justices.”

The example Ms. Wehle uses to portray originalism’s alleged bankruptcy is bizarre, for it stands for the opposite proposition.  Wehle focuses on Scalia’s opinion in a case almost two decades old. In that case, Scalia wrote that the Fourth Amendment requires that police show probable cause and obtain a warrant before using a thermal imaging device to observe a home for the excessive heat that home-grown marijuana generates. As Wehle points out, thermal imaging did not exist in 1787. Through that statement, she apparently thinks she’s proving that Scalia was of necessity “making stuff up.”  Horse manure.

What the Supreme Court Justices are being paid to do is tease out the bedrock principles of the Founders and apply those to new situations, including new technology, which is precisely what Scalia did.  The Fourth Amendment requires probable cause to search a private home.  Whether they conduct that search physically, by breaking down a door, or without physical intrusion, using new technology, the core principal behind the 4th Amendment still applies.  It is still a search requiring that police act with probable cause.

What Ms. Wehle is arguing for is policy-based jurisprudence with unelected, life-term Supreme Court Justices acting as a politburo, imposing their own policy choices as Constitutional law..  She wants judges to ” put their policy goals on the table for the rest of us to see and evaluate.”  This is an outright assault on the Constitution.  Justices on the Supreme Court have one power under the Constitution.  Per Article III, Section I, they hold “the judicial power.”   The power of imposing “policy goals” on this nation has nothing to do with the judicial power.  Imposing policy goals is solely the province of the Congress which, under Article I, Section I of the Constitution has “all legislative power.”  At least unless Ms. Wehle and other progressives win their slow motion coup to permanently bend the Judiciary, and with it the very Constitution, to their will.

The Attack On Due Process

The Democrats turned the Kavanaugh Hearings, the goal of which was to determine his fitness for the Supreme Court, into an utter travesty when, at the twelfth hour, they made public unfounded charges that Kavanaugh had engaged in sexual batteries in high school and college.  It was, as to Kavanaugh, the same as the Russian collusion charges were to Trump — false allegations made at the last minute to forestall due process and to drum up a public outcry that would keep these two out of power or to weaken and delegitimize them so they could not fairly exercise power.

While due process of law is a foundation of our nation, its antecedents predate our Constitution by a millennium at least.  The Magna Carta of 1215 famously makes references to due process, although even did not invent “due process” but, instead, acknowledged its pervasive existence at law in England and stated that King John could not suspend it. The words “due process” are shorthand for all of those systems and processes we have developed over a millennium — from probable cause to search and arrest to jury trials to appeals to actions of habeus corpus — to ensure that, whenever the state uses its police power, it will do so with reliable fairness.

Due process is an answer to the ancient question, quis custodiet ipsos custodes – “who watches the watcher?”  Our Constitution answered that question in the political realm with checks and balances and in the legal realm with “due process.”   The latter is our way of making sure that multiple people — and, to the maximum extent possible, these people should have no bias as to the particular case — have to examine facts to determine a person’s guilt before the state can take that person’s life, liberty or property.

Due process of law is so fundamental to a republican form of government that a republic cannot exist without it.  If a government is free to exercise its power without the check of due process, then, by definition, you have a tyranny, even if it has not reached the tyrannical extremes of, say, North Korea.  Our English forebears recognized a tyranny when they saw one and waded through a river of blood, in multiple rebellions and civil wars, from the First Baron’s War in 1215 to the Glorious Revolution of 1688, to ensconce the right to due process of law as one of their rights against government.  Today, we call a government operating without due process of law a police state, a fascist state, a dictatorship, or a socialist utopia.

What the above means is that it should be a disqualifying event if someone seeking power in our government comes out in favor of punishment without due process of law. And yet here we are, during the weekend before Constitution Day 2019, with the NYT yet again raising unproven allegations against Brett Kavanaugh, hiding highly relevant information bearing on his innocence, and Democratic candidates for President reflexively calling for Kavanaugh to be removed from the bench.

Kavanaugh’s true crime is that he is an originalist, and the left does not need due process to establish that.  As to actual crimes, no need for due process when false allegations and a howling mob will do the job of limiting Kavanaugh’s right to life, liberty and property.  The Constitution be damned.

Packing the Court

If the Constitution limits the Supreme Court to exercising judicial power then — as was the case until the middle of the 20th century — then its makeup should not cause major controversy.  As progressives seized power in America, that changed, because they understood that they could expand their legislative reach by shaping a judiciary that intruded in the legislative sphere and, even better, exercised without check the People’s Article V power to amend the Constitution. Thanks to progressive policies, the Supreme Court became, not the least dangerous branch of government, as forecast by Alexander Hamilton in the Federalist Papers No. 78, but the most dangerous branch, which progressives routinely used to circumvent and subvert the ballot box and the Constitution itself.  This is why the Court’s composition went from non-controversial to the most important political question in America.  The progressives even gave us a new verb for this activism — “borking,” which describes progressive politicians assassinating originalist judges. Notably, in this lead-up to Election 2020, when Joe Biden is still considered the Democrat favorite, it was Joe Biden and Ted Kennedy who originated borking when they killed Judge Robert Bork’s nomination.

For the last century, a left-leaning Supreme Court has systematically and methodically changed our nation’s fundamental nature. They have removed Christianity from the public square, found a hidden right to abortion, expanded the regulatory state, approved disparate impact theory, authorized gay marriage, and given us a whole host of other decisions that, in ways both large and small, have gone beyond jurisprudence and, instead, fashioned new laws and amended the Constitution — acts beyond the Court’s powers, both statutory and Constitutional.  Indeed, for the past century, the Supreme Court has been the single most important tool that progressives have wielded.  In part, that was because Democrats regularly appointed hard left progressives to the bench whenever the opportunity arose.  In part it was because, all too often, Republican-appointed jurists often took a hard left turn once on the bench.

Regarding that last point about Republican-appointed judges, there’s even a name for it: the Greenhouse effect. Thomas Sowell posited this effect have noting the way in which squishy conservative jurists, all of whom came from a social milieu in which the New York Times was tantamount to the word of God, seemed to shape their opinions to please Linda Greenhouse, the NYT reporter assigned to the Supreme Court beat.

Thankfully, Republicans have finally learned that appointing any ostensible “conservative” to the bench, if that person lacks solid originalist credentials (e.g., John Paul Stevens or Anthony “Gay Rights” Kennedy), will almost certainly lead to disaster.  These people people inevitably begin to use their power to ensconce the New York Times‘ preferred policies rather than to interpret the Constitution.  No one knows that better than conservatives in 2019.

Through the Supreme Court’s century-long shift to hard Left activism, conservatives kept playing by the rules. Now, though, the real possibility exists that five originalists may end up on the Supreme Court. This means that the Court will interpret the Constitution as written, ending the era of progressive “judicial legislation.”  Rather than copying conservatives, who meekly acquiesced to the bastardization of the Constitution, progressives, faced with a return to Constitutional values, have announced that we need to change those rules.

More than a few progressives have floated a plan to pack the Supreme Court with progressive judges if the Supreme Court ever becomes staffed with five originalists.  This is a raw play for permanent political ascendancy.  The latest on Constitution Day came from professional race hustler and New York Times opinion columnist (but I repeat myself) Jamelle Bouie, who writes “Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court.”

Kevin Williamson responds at NRO:

Bouie is a habitually sloppy thinker and writer, and here falls into two of the most common modes of partisan hackery. The first is the argument that his party must “play hardball” . . . lest the bad guys on the other team write their partisan “ideological preferences into the constitutional order.” . . . Bouie here is engaged in the New York Times version of shrieking “But they started it!” as a justification for playground misbehavior. Republicans don’t think they started it — not where judges are concerned, anyway. They think Joe Biden and Ted Kennedy started it in October 1987 with the smearing of Robert Bork, which permanently changed the character of Supreme Court confirmation hearings.

Bouie foreswears an intention of trying to “make the courts a vehicle for progressive policy,” and, of course, he does this as he writes of the ways and reasons for making the courts a vehicle for progressive policy. And here is the second common mode of partisan hackery: The belief that one’s own ideological preferences are not ideological preferences at all but self-evident moral truths. This belief can be held either insincerely (and cynically) or sincerely (and stupidly). For Bouie, it seems to be a bit of both.

The point of packing the courts, he writes, is “to make sure elected majorities can govern,” and he cites Supreme Court checks on the grander ambitions of Franklin Roosevelt and Progressive Era as examples of the Court frustrating the those “elected majorities.” He goes on to celebrate Roosevelt’s bullying the Court into submission like some tinpot caudillo. Roosevelt was unable to follow through with packing the Court, but the gambit, Bouie writes, “had the desired effect,” i.e. terrorizing the Court into giving the Roosevelt administration a freer hand. . . .

Do read the entire article.  It is an excellent fisking of Bouie’s ramblings, though to be fair to Bouie, he is not innovating in idiocy.  He is merely parroting run-of-the-mill progressive thinking, which is thoroughly ignorant of the Constitutional design on one hand and totalitarian on the other.

Williamson goes on to point out that the Constitution is in fact designed to thwart what he calls majoritarian rule — i.e., democracy.  Our Founders feared and detested democracy as the worst of governing models.  James Madison, the Father of the Constitution, was a man who was steeped in world history. With this background, he wrote of democracy in Federalist No. 10:

A pure Democracy, . . . can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. . . .

What the progressives propose is dangerous stuff.  Attempting to pack the Supreme Court to establish permanent progressive dominance in our nation would be an invitation to a second civil war.  That’s a Hell of a way to celebrate Constitution Day 2019, eh?

But in truth, this all didn’t just start in the past week.  The Progressive Left has engaged in sustained attack against the Constitution since President Woodrow Wilson obscenely declared the Constitution unworkable and inapplicable to the modern world.  Wilson believed that experts, working without any constraints, should rule America. In other words, he envisioned our modern regulatory bureaucracy.  The problem for progressives is that, in the early 20th century and today, far fewer than the two-thirds of Americans needed to amend the Constitution agree with them.  Wilson and the progressives therefore invented “the living Constitution” — the theory holding that the Constitution can be reinterpreted to mean anything that five justices, carefully selected for their progressive ideological purity, want it to mean.  With this background, modern progressives’s reaction to Constitution Day 2019 was just par for the course.

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