Category: U. S. Constitution

Would a Fascist Want an Originalist on the Supreme Court?

First posted on 4 July 2018.

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Donald Trump is called many things including racist, misogynist, xenophobe, and fascist. Suppose he is a fascist. Then he is not a very good one. For he is about to nominate an originalist to the high court. A fascist, however, would not want an originalist on the court but someone who views the Constitution as a 'living' or 'open' document, one into which and out of which fascist ideas could be read.

Should we conclude that Trump is  a fascist who does not understand what fascism entails?  Or should we conclude that Trump is not a fascist?

Some will say that he is a proto-fascist, not one quite yet but soon to be one. No worries! If originalists dominate the court then fascism doesn't have a chance.

One could go on like this. If Trump is Hitler, why did he move the U. S. embassy from Tel Aviv to Jerusalem, and why is he for Second Amendment rights?

If he is the devil himself, why is he for religious liberty?

If he is the personification of all evil, then why . . . .

I am pretty sure the Dems' hyperbolic slanders will hurt them come November. So I warmly encourage them to keep 'em coming.

An INDIVIDUAL Right to Keep and Bear Arms

>>In District of Columbia v. Heller the Supreme Court held in 2008 that the District’s handgun ban violated the individual right to keep and bear arms. The opinion clarified that to “bear arms” means to “carry arms” and has no exclusive militia context. And it rejected the view that the right could be dismissed or diminished by judge-made interest-balancing tests.<<
 
Of course it is an individual right: my right to life is my individual, not collective, right to life and said right entails my individual right to defend my individual life. And of course if I have the right to bear arms, then I have the right to be armed outside my domicile. Obviously, I have a greater need for self-defense outside my domicile than within it.
 
Will leftists say that this is now 'settled law'? Or will they say that the 2008 ruling can be overturned?  If they say the latter, will they also say that Roe v. Wade can be overturned?

“The People are Supreme”

Thus read a protester's placard. Now that is rich!

The implication is that in a democracy the people decide, not nine black-robed elitists, when the whole point of overturning Roe v. Wade is to return the question of the legality of abortion to the states where — wait for it –  the people will decide.

The Manipulative Rhetoric of Garrett Epps

Keith Burgess-Jackson on a law professor gone amok:

Two years ago this past month, law professor Garrett Epps published a short essay entitled “Common-Good Constitutionalism Is an Idea as Dangerous as They Come” in a high-brow literary magazine, The Atlantic. That he published his essay in this organ rather than, say, a law review suggests that he was trying to reach non-specialists. The result, I am afraid to say, is a disaster. The essay is too simplistic to be of any use to his fellow law professors, but too arcane and abstract for many or most of the magazine’s readers.

To Provoke a Pre-Emptive Crap Storm?

Is that why it was leaked?

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A correspondent replies:

Yes, Bill, I believe so. Someone in Sotomayor's or Kagan's office. 

It was a call to action. They weren't going to let their side be blindsided.

The leaker will either be protected or, if caught, then lionized. For them, the end of Roe is the end of the world.  Roberts will do for Roe what he did for Obamacare. The homes of Alito et al. will be picketed, their occupants threatened to revise their opinion. The enemy's been planning for this as they have for the next election.

Sadly, our political opponents are indeed enemies. If you are one of us, broadly conservative and/or classically liberal, and you do not understand this, then you are a useful idiot. One of the reasons the destructive Left is so hard to defeat, despite the obvious lunacy of so many of their assertions and policies, is because of this very large group of useful idiots.  It includes roughly half of the Republicans in government, and a large segment of rank-and-file Democrats who live in the past, or for some other reason are oblivious to the threat the 'woke' folk pose to them, their progeny, their beliefs, their security, and their way of life. If you are not on the hard Left and you voted for Biden, then you are a  useful idiot. I have noticed, however, that people do not like being called idiots; adding the qualifier 'useful' does little to mitigate their umbrage.  For they  understand that they are being called useless to the cause of the Sane and the Reasonable.

Polylogism and Leftist Racism

Anthony Flood sends us to Charles Burris, Polylogism — The Root of America's Divisiveness, Decline and Destruction.

History is repeating itself before our eyes. The widespread controversy surrounding President Joe Biden’s Supreme Court nominee Ketanji Brown Jackson as a “black woman” recalls the editorial in The Washington Times, “A Judge Too Far,” concerning President Obama’s earlier nomination of Judge Sonia Sotomayor for the Supreme Court.  The editorial perceptively observed:

“Judge Sotomayor seems to think that inherent racial and sexual differences are not simply quirks of genetics, but make some better than others. Consider her 2002 speech at the University of California-Berkeley School of Law:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said. “I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

“She also accepted as potentially valid the idea that the “different perspectives” of “men and women of color” are due to “basic differences in logic in reasoning” due to “inherent physiological or cultural differences.”

The brilliant Austrian economist Ludwig von Mises, regarded as the greatest economist of the 20th Century, discussed this Marxist nonsense in his magnum opus, Human Action, under the category of polylogism. 

This is the bogus idea that the logical structure of the mind is different based on one’s class, race, ethnicity, national origin, gender, sexual preference, etc.

This skewed Marxist concept lies at the root of all “politically correct” notions of cultural relativism and multiculturalism fashionable in academia, the elite media, and critical race and legal theory circles today.

And if President Biden has his way, upon the highest court in the land.

This is more than the widely-accepted idea that our various life experiences shape our world view, or influence our value judgments in making ethical and moral decisions.

Again, polylogism specifically holds that the logical structure of the mind is different based on one’s class, race, nationality, gender, sexual preference, etc. There is no objective reality independent from these fixed determinative factors of causality.

The notion of a Constitutionally-driven independent judicial temperament or impartiality becomes impossible.

The rest is below the fold. 

Did you catch the exchange between Senator Ted Cruz and nominee Jackson? 

"For example, I'm a Hispanic man. Could I decide I was an Asian man — would I have the ability to be an Asian man and challenge Harvard's discrimination because I made that decision?" Cruz added.

Jackson replied that she could not respond to questions based on hypotheticals.

Lord help us.  Yet another indication that leftists are mendacious to the core. 

Continue reading “Polylogism and Leftist Racism”

Dreher contra Buchanan on “All men are created equal.”

Rod Dreher quotes Patrick J. Buchanan:

“All men are created equal” is an ideological statement. Where is the scientific or historic proof for it? Are we building our utopia on a sandpile of ideology and hope?

Dreher responds:

With that, Buchanan repudiates not only the founding principle of our Constitutional order, but also a core teaching of the Christian faith, which holds that all men are created in the image of God. 

I am with Dreher on this without sharing quite the level of high dudgeon that he expresses in his piece. 

I am always surprised when people do not grasp the plain sense of the "that all Men are created equal" clause embedded in the opening sentence of the second paragraph of the American Declaration of Independence. It cannot be charitably interpreted as a statement of empirical fact. If it were so interpreted, it would be false. For we all know, and certainly the Founders knew, that human beings are NOT equal as a matter of empirical fact either as individuals or as groups.

Suppose a statement can be interpreted in two ways. One way it comes out plainly false; the other way it comes out either true or plausible or not obviously untrue. Then what I understand the Principle of Charity to require is that we go the second way. 

For Buchanan to demand "scientific or historic proof" shows deep misunderstanding. For again, the claim is not empirical. Is it then a normative claim as Mona Charen (quoted by Dreher) seems to suggest? It implies normative propositions, but it is not itself a normative proposition. It is a metaphysical statement. It is like the statement that God exists or that the physical universe is a divine creation. Both of the latter statements are non-empirical. No natural science can either prove them or disprove them. But neither of them are normative.  They are factual statements, though not empirically factual.  (Observe also that a factual statement need not be true. 'BV has three cats' is a factual statement, indeed it is empirically factual. It is not a normative statement, and it is a statement that can be empirically confirmed or disconfirmed. But it is false.)

Note that the Declaration's claim is not that all men are equal but that all men are created equal. In such a carefully crafted document, the word 'created' must be doing some work. What might that be?

There cannot be creatures (created items) without a Creator. That's a conceptual truth, what Kant calls an analytic proposition. So if man is created equal, then he is created by a Creator. The Creator the founders had in mind was the Christian God, and these gentlemen had, of course, read the Book of Genesis wherein we read that God made man in his image and likeness. That implies that man is not a mere animal in nature, but a spiritual being, a god-like being, possessing free will and an eternal destiny. Essential to the Judeo-Christian worldview is the notion that man is toto caelo different from the rest of the animals. He is an animal all right, but a very special one. This idea is preserved even in Heidegger who speaks of an Abgrund zwischen Mensch und Tier. The difference between man and animal is abysmal or, if you prefer, abyssal. Man alone is Da-Sein, the 'There' of Being; man alone is endowed with Seinsverstaendnis, an understanding (of) Being.  But I digress onto a Black Forest path.  

Now if all men, whether male or female, black or white, are created equal by God, and this equality is a metaphysical determination (Bestimmung in the sense of both a distinctive determination and a vocation) then we have here the metaphysical basis for the normative claim that all men ought to be treated equally, that all men ought to enjoy equally the same  unalienable rights, among them, Life, Liberty, and the Pursuit of Happiness.  (We note en passant that these are negative rights!)

All men are normatively equal because they are metaphysically equal. They are the latter because they are spiritual beings deriving from one and the same spiritual source.  Each one of us is a person just as God is a person. We are equal as persons even though we are highly unequal as animals.

Without this theological basis it is difficult to see how there could be any serious talk of equality of persons. As the alt-righties and the neo-reactionaries like to say, we are not (empirically) equal either as individuals or as groups. They are absolutely right about that.   

Dreher is also right that the theologically-grounded equality of persons is "the founding principle of our Constitutional order," and thus of our political order.  Repudiate it, as Buchanan seems to be doing, and you undermine our political order.

What then does our political order rest on if the equality of persons is denied? 

Related: Sullivan is Right: Universalism Hasn't Been Debunked

Free Speech and the First Amendment

The free speech clause of the First Amendment to the United States Constitution protects the citizen's right to free expression from infringement by the government, not from infringement by any old entity.  My home is my castle; you have no First Amendment rights here, or at my cyber-castle, my weblog. So it is no violation of your First Amendment rights if I order you off of my property because of your offensive speech or block you from leaving stupid or vile comments at my website. It is impossible in principle for me to violate your First Amendment rights: I am not the government or an agent thereof.  And the same holds at your (private) place of work: you have no First Amendment rights there.

The Right to an Opinion

The right to express an opinion does not absolve one of the obligation to do one's level best to form correct opinions.  Note however that the legal (and moral) right to free speech guaranteed  to the American citizen by the First Amendment of the U. S. Constitution remains even if one shirks one's moral (but not legal) obligation to do one's best to form correct opinions.  

What the 2020 Election is About

"More than anything, this election is about President Trump." (Mara Liasson, NPR, 2/2/2020)

Not so! The election is a key engagement in the battle for the soul of America. It is not so much about Trump as it is about the defense of our constitutional republic. The Democrat party, in the control of the hard Left, aims to subvert our constitutional order.  They are taking aim at the Electoral College, the Second Amendment, and the First as well. For a leftist, dissent from their positions is 'hate speech.'  The Democrats have become illiberal. Mirabile dictu, conservatives are now the new (classical) liberals! We stand for individual liberty; they for an ever-more invasive State apparatus.

The Constitution herself is at risk. For despite their mendacious invocations, the Democrats do not care at all about the Constitution, as is evident from their vicious attempts at blocking the Kavanaugh appointment. They oppose the originalism that alone honors our great founding document. The Democrats are also assaulting bedrock American commitments such as limited government, the presumption of innocence, national sovereignty, the rule of law, the very notion of a citizen and the related distinction between legal and illegal immigration. The political weaponization of the impeachment provision of the Constitution is a spectacularly clear example of their destructive leftism. The Democrats embrace such outrages as sanctuary jurisdictions. I could go on.

So 2020 is not about Trump the man but about the preservation of the Republic. Trump is 'merely' carrying the fight to the Democrats, exposing them for what they are, and teaching fellow Republicans how to develop their political cojones and fight as they must if we of the Coalition of the Sane are to prevail.

A Bad Argument Against Originalism Refuted

This canard is often repeated: "We need a living constitution to govern a modern society."

In response, Neil Gorsuch distinguishes between MEANING and APPLICATION. The original meaning of the Constitution remains fixed; it is the range of applications that changes. Speech remains protected despite the fact that at the time of the founding electronic means of communication did not exist. (First Amendment). The Fourth Amendment still protects us against "unreasonable searches and seizures" despite the fact that there were no means of electronic surveillance in the early days of the Republic.

An example Gorsuch does not give, but I will, pertains to the Second Amendment. There were no automatic or semi-automatic firearms back then; hell, there weren't any revolvers either. But "the right to keep and bear arms" has the meaning now that it had then. It is just that the application or extension of the term 'arms' has widened.

I hope to refute other bad arguments against originalism later. See Neil Gorsuch, A REPUBLIC, IF YOU CAN KEEP IT, Crown Forum, 2019, p. 111. An excellent book and an excellent counter to leftist claptrap.

The Grave Danger to the Republic of ‘Red Flag’ Laws

Destructive Democrats now label the National Rifle Association  a 'domestic terror organization.' Mind-mannered Mike of Mesa is a member and receives their publications. His mail man, though, is a flaming lefty. The mail man reports Mike to the government as a domestic terrorist on the ground that anyone who is a member of a terrorist organization is a terrorist. ATF agents break into Mike's house in the wee hours and seize his one and only firearm, a semi-automatic pistol. A year later, Mike is able to get his gun back, but he must pay all court costs.

Not quite Nazi Germany, but getting there.

If Democrats call NRA members domestic terrorists, I call Democrats totalitarian proto-Nazi scum. The difference between the two labels is that my label applies.

Never forget that the Left's strategy is incremental: gun confiscation in violation of both the Second and Fourth Amendments.

The Democrat Party is now a hard-Left party. 

Vote. Confirm.

A powerful statement by Malcolm Pollack, at once both personal and objective. I recommend in particular the penultimate paragraph:

We who came of age in the latter half of the twentieth century have lived our whole lives in such ease and peace and prosperity that we have mostly forgotten, I think, how rare, and how precarious, order and peace and safety are — how easily they are lost, and what sacrifices, and what sense of duty and gratitude, are necessary to sustain them. We just take it all for granted — this astonishing edifice of law and tradition and culture and trade and agriculture and innovation and justice and security — as if it was simply a pre-existing and eternal feature of the world. We imagine, lately, that we can just pick at it as we please, pull pieces out of it and burn them, hack away at its foundations, rip out its beams and joists, and crack its pillars without causing it, someday very soon, to come crashing down on our heads.

One does well to recall the wisdom at Hosea 8:7: Sow the wind, reap the whirlwind.

And never forget who has the guns. Is that a threat? No, it's a warning. You do not want a civil war. You will not like it.

Please exercise your historically-informed imagination now so that you won't have to rely on perception later.

It’s a War: The Democrats’ Behavior Proves It

Let's begin with a very simple distinction between the behavior one would rightly demand of a judge who was adjudicating a dispute between two parties, and the behavior of a citizen defending himself against very serious but groundless accusations. From a judge one expects and demands impartiality.  The demand is reasonable and can be met because judges are not themselves parties to the disputes they mediate. A judge with an interest in the outcome must recuse himself.

But it is unreasonable in the extreme to expect a citizen who is defending himself from a scurrilous, potentially career-ending  attack to display a calm judicial temperament as if he were above the fray and not precisely being attacked. 

In fact, if Judge Kavanaugh had not defended himself with passion and righteous indignation, his enemies would have taken it as proof of his guilt. "You see, he is guilty! Any normal person would have vigorously contested the accusations brought against him!"

You can see from this just how vicious Senator Feinstein and her colleagues are. The simple distinction explained above is obvious and of course they understand it  They would deploy it themselves if it were to their advantage. They are not stupid; they are willing to play dirty if it  assures them of victory.  They are obviously out to stop the Kavanaugh confirmation by any means. Schumer has in fact said precisely that.

The hypocrisy is to preach the importance of impartiality while failing to practice it oneself. Feinstein and her gang are supposed to be impartially evaluating the nominee, not accusing him of impartiality in a matter in which it would be inappropriate for him to be impartial!

But it may be worse than hypocrisy. To preach impartiality is to have at least some  commitment to it. But there is increasingly little reason to think that the Dems are committed to the values we cherish. It certainly looks as if they want one thing only, power, any way thy can get it. And impartiality be damned.  If impartiality is to their power advantage, then they are impartial, if not, not.

They have one goal: power and total control. The Constitution, interpreted as written, stands in their way. That is why they will do anything to destroy the textualist/originalist Kavanaugh.

So it's a war. It's a war because there s no common ground.  One cannot compromise with people who will do anything to win and who reject such bedrock principles as the presumption of innocence.  

Feinschwein