Libertarians are Cool on Kavanaugh

Constitutional Republic
In a constitutional republic, why would you not want a constitutionalist justice?

Progressives not surprisingly, hate President Trump’s pick of Judge Brett Kavanaugh. He won’t create rights not enumerated in the Constitution, nor will he legislate from the bench.   Conservatives like him, as he was vetted and approved by the Federalist Society for consideration.  They love him for the same reason the Left hates him. Libertarians have given the choice a cooler reception, citing concerns about privacy rights, especially when it comes to Fourth Amendment protections.  Judge Andrew Napolitano, a libertarian-leaning judge had this to say about the pick:

Now he has given us a nominee to the highest court in the land who typifies the culture he railed against when he claimed he’d drain the swamp. This man and this culture accept cutting holes in the Fourth Amendment because they don’t believe that it should protect privacy. This man and this culture accept unlimited spying on innocent Americans by the National Security Agency because they don’t believe that the NSA is subject to the Constitution.  — Judge Andrew Napolitano

Judge Napolitano’s concerns have been echoed by others on the libertarian side:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.  –Rep Justin Amash, (R) MI

Restore the 4th

Senator Rand Paul, arguably the most notable libertarian on Capitol Hill was also cool on Kavanaugh, reserving his judgment for now…  “I’m not going to make any comment until we’ve had a chance to look through and really go through a discovery process, meet the nominee,” — Sen Rand Paul, (R) KY

Liberals don’t like Kavanaugh, they are deathly afraid of him overturning Roe v. Wade, and would prefer a justice who believes in a “living Constitution”.  Conservatives like him because they think he won’t legislate from the bench.  Libertarians are concerned that he will opt for an interpretation of the Constitution that favors the government over individual rights.  Will Senator Rand Paul, who might well be the deciding vote in the Senate, be able to overlook past rulings on the Patriot Act and NSA surveillance?  Will he decide that perfect is the enemy of good-enough, or will he find he has irreconcilable differences with Kavanaugh’s judicial philosophy when it comes to privacy versus security?

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Constitution Memorial Day

U.S. ConstitutionSaturday marked the 229th anniversary of the ratification of the U.S. Constitution.  It established the United States as the world’s first constitutional republic.  We may be mere months from the end of America’s existence as such.  2017 could be the first year of a new, post-Constitutional era.  If Hillary Clinton is elected president her choices of Supreme Court justices will tip the balance in favor of a Court that sees the Constitution as a “living document”, one that can be interpreted to mean whatever they need it to mean.  On that day, the Constitution, already in exile, will cease to function as a constraint on government.

“A Bill of Rights that means what the majority wants it to mean is worthless.”  -Antonin Scalia

The Bill of Rights in particular will be eroded to such an extent as to become meaningless.  Rights favored by the new majority will be created out of whole cloth, while rights not favored, such as the right to bear arms, will be made virtually impossible to exercise.   Consider this:  The subject of marriage does not come up anywhere in the Constitution, but the tenth amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So anything not specifically mentioned in the Constitution, such as marriage, would seemingly be governed by that amendment. It establishes what is often referred to as “state’s rights”.  When some states wanted to outlaw same-sex marriage, and some states wanted to legalize it, the Supreme Court stepped in with the Obergefell v. Hodges and legalized ‘gay marriage’ nationally.  Many social conservatives objected to the decision on moral and religious grounds, setting those objections aside the decision created a number of problematic consequences for the Constitution. Many, including Justice Roberts, believe the majority in that ruling used arguments with no constitutional basis:

“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be”

Ruling based on what the majority thought the law should be seems to be exactly what happened.  The Court invented an individual right at the expense of the rights of the states.  The tenth amendment seems to exist only at the whim of the majority.  Impatient with the legislative process that requires consensus building, activists used the Court to do what they could not wait for the state legislatures to do.  Now they have the law but necessarily a consensus.  Because the ruling was based on emotional arguments more than constitutional ones, there is now no constitutional argument to place any limits on marriage between adults, not based on the sex of the participants, not based on the number, nor kinship nor likely even age.  Polygamy laws could be struck down tomorrow, were the cause popular enough.  What would be the argument against?

What other amendments are as disposable as the tenth?  What if the courts because of some public pressure due to security decided to give similar treatment to the fourth amendment?   Our right to privacy would be gone.  Proponents of so-called common sense gun control have already called for legislation (no fly no buy) that would simultaneously abridge our second, fifth, and fourteenth amendment rights.  What if the Court decided to do what a powerful voting bloc such as the anti-gun lobby demanded?

“As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.” – Antonin Scalia

Another example of how SCOTUS justices chose to use extremely contorted logic to arrive at the decision they wanted was National Federation of Independent Business v. Sebelius, the ruling that effectively legalized the Affordable Care Act, A.K.A. Obamacare.  This allowed the government to compel its citizens to engage in commerce, whether they chose to or not, whether they felt like they needed the product or not.  If you remember your grade school history, the American revolution was fought to end this sort of thing.  A government that can compel its citizens to spend money, determine how much, and on what does not serve the populace, it rules it.

The Constitution was meant to act as the guardrails of our government.  It was meant to act as a constraint to the federal government while protecting the rights of the states and individuals.  The idea of the Constitution as a ‘living document’ then makes about as much sense as playing football on a field with no sidelines, with no objective means of determining what is in or out of bounds.  Liberal justices, believing that the Constitution must adapt to the present society have little compunction against following only those parts of it that are convenient to their objectives while ignoring others.  When the Constitution gets to the point where it can mean anything the justices need it to mean, it will at once come to mean nothing.  We will be living in a post-constitutional America.  The three Supreme Court justices that our next president is expected to appoint, if they are liberal, activist judges, will be more than enough to effectively end the era of the United States as a constitutional republic.

Antonin Scalia, the Constitution, and the Coming Storm

Antonin Scalia copyOn Saturday, we lost a truly great jurist in Antonin Scalia.  Justice Scalia believed in interpreting the Constitution not as we would have it, but as the framers understood it. He was an “originalist”.  He is considered to be a conservative among Supreme Court justices.  It’s strange that a justice that believed the Constitution is an unmalleable document should be considered conservative, as if some other way of seeing it was just as valid.  Scalia knew that the documents power laid in it immutability.  He understood that the meaning of the Constitution could be interpreted, but could not be changed to fit out passions and our prejudices at the moment.  Can what was unconstitutional yesterday be constitutional today simply because we wish it to be?  Scalia knew the answer.

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.” – Justice Scalia 

Justice Scalia’s view that the Constitution is “dead” should be a universal constant among justices, it should be common sense, and sadly it isn’t.  Progressives see it as a living document, one that can change as society’s needs change.  Each decision can take the law farther and farther from the Framer’s original intent until what we have is something that not only is unrecognizable as a constitutional entity, it may even contradict the plain wording of the original document.

President Obama doesn’t share the Scalia’s originalist view of the Constitution.  To him, the Constitution is merely a guide, a series of suggestions to be followed or not according to what is politically desirable.  He has appointed, and would presumably appoint judges to the Supreme Court who share is view.  As many of the Court’s recent rulings have split five to four along ideological lines, it is easy to see that another liberal justice would change the balance of the court in favor the Constitutional destructionists.  What under such a Court would be constitutional?  Whatever the Progressives decree to be necessary to the advancement of their cause.

To those that think that the law should not be subject to the whims of a political ideology, but to our founding principles, the appointment of an activist justice should be avoided at all cost.  Luckily, the U.S. Senate must consent to the president’s pick, and the Senate is controlled by those who tend toward Justice Scalia’s originalist views.  The Republican Senate is not known for always standing steady on conservative principles.  President Obama will likely nominate a candidate with a history of judicial activism.  When the Senate initially rejects this nominee, he will call them obstructionist.  He and much of the media will claim that they are attempting to deny him his Constitutional rights.  Of course, this will be after he has exercised precisely that, his right to nominate a replacement for Justice Scalia.  That right does not require the Senate to rubber-stamp his choice.  The Senate’s right is also clear, they have the authority to consent (or not) to the president’s selection.  Constitutional conservatives must then help them to steel their spines, to withstand the hurricane winds of criticism and accusations.  The stakes are so high, so high—let’s hope they are up to the task.

Bad Judgment Abounds in Kim Davis Case

Social Consrvtsm In the NewsIt started with a bad decision to take the matter of same-sex marriage out of the hands of the voters and into the hands of the courts. Now, without support from the majority of people in Kentucky, they are forced to accept a law and their legislature has been denied even the chance to create legislation that addresses the wants and needs of their constituents. Christians feel persecuted for religious beliefs that are in conflict with the Supreme Court’s edict. The LGBT community is put in an awkward position of appearing to put their rights above those of others. All the bad things that the dissenting Justices wrote in their opinions are coming true. The result is a situation where no one looks good, or wise.

Next was what arguably another bad decision, that of Kim Davis, the county clerk charged with implementing part of the Court’s decision. Being an Evangelical Christian, she feels she does not have the authority to approve marriage licenses for same-sex couples. The fact that the government has approval authority of any marriage, gay or otherwise is in itself questionable. Other than verifying age, legal identity, and current marital status, what is there to approve? (Under the current Supreme Court ruling, marital status should no longer even be an issue, but that is a subject for another day.) She didn’t resign, nor did the take the out that the judge gave her– that she simply not interfere if her deputies signed the documents instead. It seems that given a way to keep her job, yet not lend her stamp of approval to the marriage documents was not sufficient. Her stance is admirable, even brave, but when a judge offers you a face-saving way out, you ought to seriously consider it. Again, her civil disobedience while principled, forgets the fact that she’s a public servant and is not free to choose which policies she supports. Perhaps she’s simply following the example of sanctuary city mayors, or presidents with their pens and phones, so maybe her confusion is understandable.

The judge who locked her up for contempt probably didn’t much consider the optics of sending someone to jail obsessively for having religious views incompatible with the official stance of the government. A fine would seem more in keeping with sentencing norms than outright jail time. It makes her a martyr and so in the end makes the government’s position look unwise, if not outright tyrannical. It pits needlessly one group of Americans against another.

Certainly the choice of bypassing the democratic, albeit slower process in favor of the quicker, easier judicial rout failed to build a sufficiently strong foundation of public support. Putting someone behind bars for expressing deeply held religious beliefs does not do much to support the tolerance argument. It will serve to build up resentment and distrust amongst a segment of the population already suspicious of the Federal government. The results have been predictable, and were predicted by Justices Roberts and Scalia in their dissents. At every turn, a series of poor judgments has snowballed into debacle. Now it will take a Kentucky legislature with the wisdom of Solomon to split this baby in a way that satisfies all parties. The courts, if they have any wisdom, should step back and allow those elected by the people sort out a mess they helped to create.

News Brief

RL New Brief
All the news fit for me to comment about.

So much has happened in the last 72 hours it makes your head spin!  Here’s a (very) brief summary of recent news events…

Election 2016

On Wednesday, Governor Bobby Jindal (R) of Louisiana announced he is a candidate for president. He strikes me as a smart guy who knows how to deliver the conservative message.   He comes across as a true believer in America and wants to save it.  “I’m not asking you to simply join my campaign, I’m asking you to join a cause,” he declared during his announcement speech. As is the case with many of the Republican candidates– his message is great, but he lacks the funding and organization to make a serious run.  Nothing short of a flawless campaign for as long as he can keep it going will gain him the nomination.


Supreme Court Chaos Pt. 1

Two landmark cases came down this week, both will have far-reaching consequences, not just on the surface with the outcomes, but also with regards to how our republic will continue to function in the future. Thursday, the Supreme Court determined in King V. Burwell that the plain meaning of words within a statute can mean whatever they want them to mean in order to get the outcome they desire, in this case the legality of certain Affordable Care Act tax subsidies. This decision ushers in an “ends justifies the means” era of jurisprudence.   Does Justice Roberts realize that he just made the Court all but irrelevant as a means of upholding the Constitution?  Apparently upholding legislation, even horribly written legislation, is more important.


Supreme Court Chaos Pt. 2

The next day, they were at it again, this time with a ruling that allows gay marriage in all 50 states. Critics have pointed out that this was likely going to happen eventually, one state at a time.  “Marriage Equality” activists couldn’t wait for that to happen, nor apparently the SCOTUS.  Ignoring the 10th Amendment that gives the States the right to decide this matter on their own, the Supreme Court skipped to the end of the movie and produced an ending of their own. The problem was not the outcome, which like it or not, was going to happen eventually.  Most likely, Western civilization will not be destroyed if we have gay marriage.  We might have to redefine the word “marriage” in the dictionary, but that will be the worst of it.  The problem is how the decision was come about.  Again, the ends justified the means in this case, that’s not how our legal system is supposed to work.