Dissolving the Political Bands

This past week was a historic time. The impeachment trial ended with a vote that there was no need for calling defense witnesses, or any prosecution witnesses in addition to the 18 testimonies given in the House. The official acquittal should happen Wednesday. It would be a good thing if some brave Democrat broke away from the pack, to at least make the acquittal bipartisan.

While that has been going on, the President signed the new USMCA treaty. He attended and spoke at the March for Life. He proposed a possibly workable peace solution in the Middle East. More Constitution-following judges have been appointed. Trade disputes with China seem to be working toward a better conclusion than expected. Economic news is good. There’s probably more good news—which we're sure to hear about in Tuesday night's State of the Union address. Imagine the good we might get done without the distraction of Democrats claiming he should be stopped.

But beyond our shores, the big news is the final deadline of Brexit. Friday was the last day that the UK was part of the European Union. It was a long time coming. The British people voted in favor of leaving the EU in 2016—almost four years ago. That’s a long time to get things lined up for what should be a fairly simple process.

Nigel Firage, final address to EU Parliament
screenshot from here

But the good thing is that it was accomplished—without bloodshed.

As we know from the Declaration of Independence,

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

Declaring the causes is what the rest of the Declaration of Independence does.

Here in Texas, we’re a month away from celebrating our declaration of independence from Mexico, which accomplished a similar purpose.

In these cases, as with Brexit, there was a necessity to separate, to dissolve the political bands. It’s a rare thing indeed to have this happen without bloodshed. Congratulations to the Brits.

Nigel Farage has been their minister to the EU parliament for some twenty years—all of that time attempting to work himself out of a job by exiting. As he said in his brief farewell address to that Parliament, a couple of days ahead of the deadline,

My mother and father signed up to a common market, not to a political union. Not to flags, anthems, presidents—and now you even want your own army.

The European Union was not sold as a “United States of Europe”; it was sold as a joint economic alliance. What it became was usurpation of power worthy of admiration from many a dictator. And the voice of the people has been squelched. As Farage pointed out,

In 2005 I saw the Constitution that had been drafted by Giscard and others. I saw it rejected by the French in a referendum. I saw it rejected by the Dutch in a referendum. And I saw you in these institutions ignore them, bring it back as a Lisbon Treaty and boast you could ram it through without there being referendums. Well, the Irish did have a vote, and did say no, and were forced to vote again. You’re very good at making people vote again.

But what we’ve proved is, the British are too big to bully—thank goodness!

If the EU had been what it claimed originally to be, only an economic alliance, there would not be a Brexit. But the UK was fed up with their sovereignty being ignored. They were fed up with decisions important to them being overridden by some bureaucrats in a foreign city. They wanted to retake their sovereignty, to be their own country again. It was as simple as that.

Brexit supporters celebrate in London as the
clock reaches 11 PM on January 31, 2020
image found here

There are some complicated details, to reset trade negotiations that must change under the new circumstances, happening over the next 11 months. But as Farage summed it up:

Once we’ve left, we are never coming back, and the rest, frankly, is detail.

Congratulations to our friends! Like them, “We love Europe; we just hate the European Union.” We don’t hate a people, or a nation. We’re in opposition to a statist tyranny wherever we find it.

It occurs to me to ask the theoretical question of what it would take for such an exit in our indivisible United States. We are not the same type of project as the EU; we are not a simple economic agreement that morphed into a centralized total government. But it’s helpful to remember what we are and what we did not agree to.

Our government was created to join multiple sovereign states (which means actual self-governing nations, not provinces) under an umbrella central government with limited purposes. That government, according to the preamble to the Constitution, is to

establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

There are enumerated powers granted to this federal government. Nothing else. And there’s a pretty solid list of what the federal government cannot do, just for clarity. (I listed the powers and restrictions here and here.)  We have this all written out in our Constitution. We are a people with the rule of law, rather than ruler’s law.

So, theoretically, as long as we have our Constitution protecting us, we are indivisible. But what happens if powers are usurped, and some ruler steps in dictatorially ignoring our Constitution?

We’ve had small-to-medium usurpations going on since the beginning. Andrew Jackson did some. Teddy Roosevelt did some. Woodrow Wilson did a lot, and he set things in motion for more and more usurpations. Franklin Roosevelt pushed the envelope further.

We had more than we could stomach under Obama. The Supreme Court struck down his attempts at rule-by-dictate 96 times. There were other times he got away with things—like Obamacare, which was the first time the government was allowed to force people to purchase a good or service against their will. But Obama was frequently checked by the courts, at a much higher rate than his predecessors. He lost 44 cases unanimously, which of course included his own appointees. 

But, now, we have an entire slate of Democrat presidential candidates who openly propose socialism as a replacement to our constitutional government and free market system.

Socialism is dictatorship. It is ruler’s law. Adding the word “democratic” before the term is akin to “democratic slavery,” which is what slavery was before we eliminated it in a bloody war. A majority voting to take liberty, life, or property from some minority may make it democratic, but it’s still slavery.

What if one of these openly socialist candidates were to win? Would this break the contract that unites our states? Not immediately—and the checks and balances in the Constitution are key. It would definitely be a problem if such a president were to be aligned with a socialist majority in both the House and the Senate. But for at least a time the judicial branch can rule against such a president’s edicts. We appreciate the success President Trump has had in appointing two read-the-law judges to the Supreme Court, and—well, here’s the count as of today according to Wikipedia:

As of February 3, 2020, the United States Senate has confirmed 187 Article III judges nominated by President Trump, including 2 Associate Justices of the Supreme Court of the United States, 50 judges for the United States Courts of Appeals, 133 judges for the United States District Courts, and 2 judges for the United States Court of International Trade. There are currently 18 nominations to Article III courts awaiting Senate action, including 1 for the Courts of Appeals, 16 for the District Courts and 1 for the Court of International Trade. There is currently 1 vacancy on the U.S. Courts of Appeals, 72 vacancies on the U.S. District Courts, 2 vacancies on the U.S. Court of International Trade, and 7 announced federal judicial vacancies that will occur before the end of Trump's first term (1 for the Courts of Appeals and 6 for District Courts). Trump has not made any recess appointments to the federal courts.

President Trump appoints Justice Neil Gorsuch
image from Wikipedia

That is significant for years to come. Whatever else he may have as a legacy, he will have this improvement in the judiciary for which we can be grateful.

There may someday come a time when an administration is supported by Congress, and not checked by a judiciary, in ruling by dictate and ignoring the Constitution. In such a circumstance, individual states could feel fully justified to “dissolve the Political Bands which have connected them with another.” But if that ever comes, let it be without bloodshed, as Brexit has been.

While it’s a scary thing to have an entire political party threatening us with a socialist takeover, we’re still, so far, guaranteed our freedoms by the rule of law—the Constitution. If, as Benjamin Franklin said, we can keep it.

Two Sides of Law: Inside and Outside

There are two sides to everything, so they say. And there are two sides to the law: the inside and the outside. Or, law-abiding and law-rejecting.

What law are we talking about? The basic law of the nation, the Constitution. All federal laws are subject to the Constitution. It’s not long: 4440 words. The word meanings have not changed so much since it was written in 1787 (ratified in 1788 with the Bill of Rights attached as the first 10 Amendments).

image from here

In other words, a moderately educated citizen can understand it. It doesn’t require any special intelligence, skill, or training. It was understood by the people who voted, in their various states, to ratify it back 230 years ago.

When we’re looking at judges to make rulings in cases, there’s an inside and outside view of that too. Either we want a judge to understand the law and rule based on it, or we want a judge to rule based on something other than the law—his gut feeling, his ideology, his agreement with popular views, his sympathy toward some or against others.

This is something to keep in mind when we’re about to go through the approval process for a Supreme Court justice appointment.

There are going to be two sides in this process: those who want to make sure a judge is both capable of understanding the law and inclined to abide by it; and those who want a judge who agrees with their gut feelings, ideologies, views, and sympathies/biases.

You’ll be hearing that both sides are doing the same thing: trying to use the judiciary to promote their views, ideologies, etc. The liberals/progressives/leftists (choose your term) do it, and the conservatives do it.

But what are the conservatives conserving? The rule of law. The Constitution—and the better union it forms. How does the preamble put it?:

Establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

What part of that do those who fear a Justice Kavanaugh so violently disapprove of? Or what do they want that is outside the Constitution, and want so badly that they insist that the Constitution’s list of values and its enumerated powers should be considered extremist, radical, and dangerous?

screen shot from Judge Kavanaugh's acceptance speech

Sometimes when there are two sides, there’s the good side and the bad side, the right and the wrong. This may be one of those times.

But you’ll be hearing a lot of things from the opposing sides. Here’s my prediction: Democrats/ socialists/ liberals/ leftists/ progressives will claim the nominee will be undermining the law. But their examples will be rulings of the Supreme Court that went their way but are known—and sometimes acknowledged by judges on their side—to be making stuff up that’s simply not in the Constitution.

Then you’ll hear from Republicans. Some will be talking about some of those particular bad rulings, and hoping they may get overturned (e.g., Roe v. Wade, Obamacare). But mostly they’ll be talking about wanting a judge who goes by the law.

One side genuinely seeks someone to uphold the law. And one side fears someone who upholds the law. Hmm.

Already my predictions are holding true.

Republican Senator Sen. Cory Gardner shared this example:

What we saw last night was, from many on the left, simply mindless partisanship. I’m going to read a press release that was sent out from one liberal organization: “In response to Donald Trump’s nomination of XX to the Supreme Court of the United States,” the following statement was released, “Trump’s announcement today is a death sentence.” Apparently nominee XX was a death sentence. It didn’t matter who he chose, who he selected, they would have opposed it simply because of mindless partisanship.

And it appears the usuals got the memo. Here’s Democrat Senator Chuck Schumer:

What the hard right, the Heritage Foundation that vetted the 25, has learned is that they could never get America to go along with what they believe. They could never get the Congress, even when it’s controlled by Republicans, to go along with what they believe. And so they use the one non-elected branch of government: Article III, the judiciary, to sneak people onto the court who will then decimate Americans’ healthcare. And we are going to force judge Kavanaugh to come clean. Will he protect preexisting conditions? Will he protect Medicaid? Will he protect Medicare? We’re not gonna let him hide behind this “I’ll respect existing law,” because we’ve been burnt too many times by Justice Roberts, by Justice Alito, by Justice Gorsuch, on case after case.

The irony of those who accuse their opposition of doing precisely what they themselves are guilty of!

I’m not exactly sure how Justice Roberts “burnt” him too many times on Obamacare. And I’m not sure why the Heritage Foundation isn’t just conservative or constitutional, but is “hard right.” Everything I’ve read and followed from the Heritage Foundation is about understanding and upholding the Constitution. It's not exactly a sketchy fringe group.

Portraying our country’s basic laws as extremist is a lie. Thatt’s also why it helps to use the Spherical Model, so you don’t get confused by left and right. Instead you can compare and contrast freedom/tyranny, prosperity/poverty, and civilization/savagery. Those of us who support the Constitution want freedom, prosperity, and civilization. Those who rage against the Constitution must want the opposites: tyranny, poverty, and savagery. And you only have to look at what happens where they get their way to know that truth.

Democrat Senator Patty Murray shows her place on the sphere too:

Unfortunately, in Judge Brett Kavanaugh, President Trump has found exactly what he was looking for: someone who will put extreme right-wing ideology ahead of patients’ access to their healthcare. Judge Kavanaugh openly criticized Justice Roberts for saving the Affordable Care Act. And he suggested the DC circuit court should consider a claim that the law was unconstitutional using an argument his colleagues on the bench labeled a flawed misread of precedent.

I openly criticized Justice Roberts for his convoluted ruling on the ACA as well. I understand—enough to follow the train of thought, and some of his reasoning. But I was with Justice Scalia, in his dissent.

Among Scalia’s words:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And this:

We should start calling this law SCOTUScare.

And also this:

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I'd say criticizing Justice Roberts on his King v. Burwell decision puts you in good company, if you’re the kind of person who favors the rule of law. So let’s see Sen. Murray’s shock for what it is: a partisan talking point.

screen shot from Judge Kavanaugh's speech at AEI

Another particular concern is the sacrificial sacrament of the savage belief system: abortion. Judges are careful—of necessity—about sharing their views on controversial topics that may come before their court, and much more so since the Robert Bork hearings, sabotaged by Democrats. So there isn’t much record of Brett Kavanaugh’s views on abortion. Except that, in a speech a year ago at the American Enterprise Institute, he mentioned Justice Rehnquist’s dissents in Roe v. Wade (which was a 7-2 decision) and, two decades later, the Planned Parenthood case. He was talking about Justice Rehnquist's efforts to uphold the Constitution against judicial activism: 

It is fair to say that Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion, either in Roe itself or in the later cases, such as Casey…. But he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition.

From this we’re supposed to assume he favors women dying in back-alley abortions? Oh, the horror! Actually, he doesn’t say anything except that he thought Rehnquist’s effort was to prevent creating law from the bench. So, if abortion were an actual right, those who favor it would have no fears from those who are bent on upholding the law.

And even if the Court should have the opportunity to rule on a case that would overturn Roe v. Wade—a possibility, since even Justice Ginsburg has agreed it was badly done—that would only send the issue back to the individual states, where the debate was playing out before the federal court’s interference.

If you favor upholding the Constitution, then Judge Kavanaugh’s acceptance speech offered some reassurances:

My judicial philosophy is straightforward. A judge must be independent, and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent….

I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American rule of law

Republicans/conservatives (not always the same thing, but Republicans here are joining conservatives) are pleased with Kavanaugh mainly for his rule of law philosophy. Here are a few responses recorded by the Washington Post:

Sen. Mitch McConnell: The President really could not have done a better job of picking an extraordinarily well qualified nominee, somebody who’s clearly, over the years, tried to follow the law as it was written, and not tried to get the result you want to get.

Sen. John Cornyn: The reason why I think the left is so afraid of this nomination is because they view the judiciary as a policy-making arm of the federal government. We disagree. And we’re in good company with people like James Madison and Alexander Hamilton, and the Founders, who viewed the judiciary as what they called the least dangerous branch, because they aren’t the policy-making arm of the government; it’s Congress, and it’s the executive branch—that’s where policy needs to be made.

Sen. John Thune: One of the amazing things was that Democrats, who we expected would attack whoever the President nominated, some of them were actually out before he named the individual he was going to nominate, announcing their opposition. So, it’s pretty clear theirs is a knee-jerk reaction. As Senator Cornyn pointed out, Democrats have a view of the judiciary that’s very different.

I can’t say for certain that Brett Kavanaugh will be an excellent justice and a firm upholder of the Constitution. But those who have vetted him think he will, and I hope and pray they are right.

Because, when the law is the Constitution, and we uphold it and let the chips fall where they may, we all get more freedom, prosperity, and civilization. I’m looking forward to a Court that will actually lessen its own power and be law-abiding.