Tag Archives: law

Interview About 2016 US Presidential Elections, Part 2

TLF: Continuing the conversation from the previous post, my guest James continues his discussion of the two main political parties in the US, and brings their presidential candidates into the discussion.

JH: Where was I?

Right.  Democrats.  Rule of Law.  The Democratic Party has spent the last several decades fighting against the idea that laws — especially the Constitution — actually mean what they say.  They have worked very hard to sell the idea that the Constitution is a “living document” which must be “reinterpreted” in light of “the realities of modern life,” with a meaning that actually changes from year to year.

But who is doing this “reinterpretation”?  Well… it turns out it isn’t the People assembling to pass amendments to the Constitution to change its text and meaning. Apparently it is too much to expect People in a “modern society” to govern themselves. Instead, Democrats hold that the Constitution can be reinterpreted by… Democrats!  When the Democratic Supreme Court justices invent a right to consensual sexual intercourse out of thin air (Lawrence v. Texas), the Democrats instantly declare it a fundamental human right, enshrine it in the platform, build new case law on it, and insist that no judge may ever overturn it.  This despite the fact that a right to consensual sex has no grounding in the text of the Constitution, is explicitly contradicted by both the entirety of American history and the Supreme Court’s own recent precedents (Bowers v. Hardwick), and loses every time it is put to a referendum for a vote.

Now, a right to consensual sex, or at least a government decision to not interfere with consensual sex, may well be a very good idea; I am keenly aware I’m talking to a libertarian, so I’m sure you feel that way.  But declaring it through judicial fiat is not an act of Law; it’s an act of Men.  Yet the Democrats celebrate this as a vindication of their theory.

But it doesn’t go both ways.  The same progressive legal theorists who champion this imaginary right to sexual autonomy are enraged when the Supreme Court upholds actual rights written in the Constitution.  People forget that the question the Court decided in the Citizens United case was, literally, “Do citizens have a constitutional right to join together to publish a video criticizing Hillary Clinton?”  The Obama Administration declared, openly, during oral arguments, that it was asserting a right to suppress the publication of political films, books, and pamphlets, and even to burn copies of books that are published in violation of government edict.  The conservative justices took one look at the First Amendment, laughed, and denied the government’s demand for censorship.  This simple and obvious application of a plainly written law has since become a rallying cry across the entire Left as a prime example of injustice.  This can only be because the Left is no longer even considering the actual Law of the Land in their legal decrees.  (Look at Hillary Clinton’s answers on judicial questions in the 2016 presidential debates, where she makes clear that she will pick judges based on the policy victories they will deliver, not their fealty to the Constitution.)

Nor is this limited to the judicial branch. In the past four years, we have watched the sitting President take an executive action on immigration that plainly violates the text of the “take care” clause of the Constitution, which he himself has conceded could not be taken by an American president bound by the Constitution, but only by a king.  We have watched the same president take the utterly unprecedented action of unilaterally suspending a portion of his own duly-passed signature health care law (the individual/employer mandates in the ACA), on his own authority, because he didn’t like how it was working.  There is no legal logic whatsoever that would prevent a President Trump from using the exact same made-up authority to suspend (say) any tax rates he doesn’t like.  I actually support a generous immigration policy, but the way President Obama implemented this policy is terrifying if you support the rule of law.

The incoming president, Mrs. Clinton, has shown, if anything, even more contempt for the law of the land, not just in her public life (she promises to further expand Pres. Obama’s lawless immigration action), but her private one (like that time she got caught by the FBI criminally mishandling classified information, because she’d set up a private system specifically to prevent American citizens from scrutinizing her activities via the Freedom of Information Act, and the FBI announced in a live press conference that she had committed every element of the crime but still somehow they weren’t prosecuting her).

It’s particularly impressive that all these extra-legal shenanigans took place after years of howls that President Bush, exercising the broad powers granted directly by the Constitution to prosecute a war during wartime as the president sees fit, was somehow “trampling on the Constitution.”

So, clearly, the Democrats are only interested in letting Democrats reinterpret their “living” Constitution.  The Constitution means whatever the Left wants it to mean at the moment.  The People?  They only enter into it when the Left considers it convenient, and only to the extent that the Left considers convenient — the Supreme Court in Obergefell v. Hodges gladly note the fact that same-sex marriage now has majority support (which it does) as justification for their manufacturing a baffling new right in defiance of centuries of law and precedent, but fail to require its supporters to reach the threshold set by the Constitution: two-thirds of Congress plus convincing majorities in three-quarters of the 50 states.

In Canada, this is called the “living tree” doctrine, based on a court case where a judge called it that, and explicitly declared that the Constitution was to be interpreted according to “progressive” principles, thus granting the Left total control of the Canadian political system.  “Living tree” is certainly a more poetic term than “living constitutionalism,” and Canadian case law has at least bothered to clearly announce it, rather than just silently usurp the Canadian constitution.  “Living tree” is also, arguably, justified by the Canadian Constitution itself, which has a lot of loopholes ripe for judicial exploitation.

For example — and this is a true story — one of my favorite hobbies lately has been talking to fellow politically active Americans and saying, “Hey, want to hear a funny joke?”

“Sure!” they say.

“Read aloud Section 1 of the Canadian Charter of Rights and Freedoms,” I reply. And they do, and then they laugh and laugh and laugh. Works on both Democrats and Republicans. As bad as things are in the States for the rule of law, we don’t have it half as bad as the Canadians governed by Section 1 of the Charter.

So, I have stayed loyal to the Republicans because the alternative is the total disintegration of our body of laws, which are already badly eroded and have felt for some time like they’re approaching the breaking point.

And then Democrats are alarmed that Mr. Trump has emerged? Trump’s a lawless thug who wants to “reinterpret” the Constitution to suit his goals. Sound familiar?  One example: Trump wants to jail journalists who criticize him. But, as we’ve discussed, Hillary Clinton doesn’t think it should be legal to make films critical of her. Trump’s theory of the Constitution is no different from the Democrats’. The only difference is the identity groups he favors. The Democrats created Trump.

Trump is unacceptable to me because he’s just as bad as the Democrats on this.  The Republicans have always been an imperfect but earnest home for the Rule of Law.  Now both parties have given up on the law. Here in 2016, they’re just competing to see who gets to be dictator for the next few years.  That’s what finally pushed me out of the GOP.

I suppose I should also note that it has always struck me as self-evident that abortion is murder.  My belief in religion has waxed and waned over the years (like most adolescents, I found Bertrand Russell’s arguments against theism incredibly compelling), but my certainty that an unborn child has the same rights as anybody else has never wavered.  There are arguments on both sides of the question, of course, and I have learned them all over the years.  But, truthfully, I don’t think there’s a person alive who doesn’t know, deep down, that the fetus is a human being, and that directly intended abortion is murder. The arguments for killing the unborn are no more sincere than the unconvincing arguments for enslaving Black people two centuries ago.

When you genuinely believe that 1 million infants are being murdered in their mothers’ wombs, every single year for forty years, big issues like tax rates and health care seem like pretty small potatoes by comparison.  Every political effort must be extended toward protecting unborn persons, both in law and in practice.  No other issue or constellation of issues really comes close.

Democrats support a right to abortion with no restrictions whatsoever throughout all nine months of pregnancy.  They believe all these abortions should be funded by taxpayers, as their platform makes clear.  They have spent decades now fighting for infanticide in the birth canal.  Their most “progressive” ethicists argue for infanticide for premature infants (which the Republicans had to fight with the Born-Alive Infants Protection Act) and, at times, for perfectly healthy infants born healthy.

Republicans, by contrast, do not generally practice what their platform preaches — the proper recognition of fetal rights from conception to cradle (and cradle to grave).  They are generally too cowardly to fight for unborn rights when it comes to the hard cases of rape and incest.  But they are the best hope the unborn have.  So I have stubbornly stuck with the Republicans, because what the hell else am I going to do?

But Trump represented a breaking point.  He doesn’t support the rule of law.  And, despite his claim to have suddenly become pro-life, I think he’s pro-choice, and I think he stands a good chance of doing even more damage to unborn rights than Mrs. Clinton. So, if that’s the Republican Party now, I can’t be a part of it anymore.

TLF: More to come on leaving the Republican Party, Trump’s good points, NeverTrump and NeverHillary.

Interview About 2016 US Presidential Elections, Part 1

The US Presidential election is nearly here, and as my last bunch of posts have been about politics, I thought it was something that I ought to cover. Election time isn’t something I enjoy, with months of mudslinging, name-calling, and so on. A lack of charity, understanding, kindness, respect (and I reserve the right to be a bit of a hypocrite during this conversation). Opinions on American politics from those in other countries who perhaps aren’t as informed as they perhaps ought to be to be opining like that. I used to be like that, and since becoming more informed, I’ve tended to keep my mouth shut.

As much as I generally dislike Facebook politics, there is someone whose political posts I actually enjoy reading. Very well-informed, not inflammatory. I even asked to be in the group of his friends that gets to see all his political posts. So I have invited my friend James to have a conversation with me about American politics, and particularly issues around the 2016 Presidential election. (For the rest of the post, I’m in italics, James is in the regular font.)

TLF: So, James, please fill us in on your political background. You’ve been quite active in your party? A lot of my English friends have expressed their distaste for the current Republican nominee. But I think many of them would be dubious about a Republican in a normal year. What is it about the Republicans that had you committed to them for so long?

JH: Well, to be glib, I’ve been committed to the Republicans because the alternative is the Democrats!  Welcome to the era of Negative Partisanship!

I am a strong believer in the rule of law rather than the rule of men.  In the United States, that fundamentally means that I believe the written Constitution must be obeyed in order for the government to maintain legitimacy.  (The U.K., which has no written constitution, does not grapple with this question in quite the same way we do.)  I know that it is often very difficult to submit to the rule of law, especially when you wield political power.  When you really, really, really think there ought to be a law about something, it is profoundly tempting to reinterpret the Constitution to allow it (or mandate it).  This is human nature.

For example, during World War II, the United States famously interned thousands of Japanese-Americans at internment camps.  While the president asserted that he was authorized to do this by unwritten, vaguely implied emergency powers in the Constitution, it quite clearly trampled on any number of actual rights that were actually written in the Constitution — the right to procedural due process, the right to a trial, the right against searches and seizure, their Fifteenth Amendment rights, their Thirteenth Amendment rights, and probably a dozen others.  This was awful.

What’s even more awful is that, in Korematsu v. United States (1944), the Supreme Court, driven by fear and misguided patriotism, ignored their responsibility to the Constitution and affirmed the gutting of Japanese rights.  In order to do this, they had to engage in a great deal of insane troll logic, because their conclusion ran absolutely against the clear text of the Constitution to which they had sworn an oath.  (Much of that insane troll logic, incidentally, continues to influence our judicial system today.)  This is a perfect example of the Rule of Men overtaking the Rule of Law.  I understand why they did it: men are weak and often fail to live up to their ideals.  But I abhor what they did, and one of my most important priorities is defending the Constitution and our political institutions against further subversions of the rule of law.

Korematsu is an especially ugly example, but there are plenty of other cases where lawmakers or judges ignored governing law in order to implement their own policy preferences.  Sometimes those preferences are good, sometimes they’re bad.  Sometimes the issue is important, sometimes not. Yet it is always wrong to twist the Constitution to fit your preferences.

In Griswold v. Connecticut (1965), the Supreme Court struck down an incredibly silly state law against contraceptives.  I agree with the policy outcome — laws against contraception are dumb — but the state clearly had every right under the Constitution to have that dumb law.  It was for the people of Connecticut to change, not nine unelected judges who imagine themselves kings. That’s what the Constitution prescribes. (If you want judges to decide these questions rather than the People, then pass an amendment. I may even support you.)  My favorite Supreme Court opinion of all time is Justice Potter Stewart’s dissent in that case.  He spends a paragraph insulting the law, then says, “But the Constitution doesn’t prevent it.  Sorry, guys.”  (It’s a page long.  Look it up.) [here it is]  The policy outcome was great: the anti-contraceptive law was eliminated and that was good.  The importance was low — nobody got sent to an internment camp over it.  But it was a decision of men, not of the law.  The same fundamental logic that drove Griswold — silly old lovable Griswold — also drove all the most nightmarish Supreme Court decisions of all time.  Korematsu.  Dred Scott.  Roe v. Wade.  Lochner.  Plessy.  And it’s not just the judicial branch: it was the President who interned those Japanese.  It was the President who ordered the unconstitutional evacuation of Indian lands that led to the Trail of Tears.  It was Congress that passed the abhorrent Alien and Sedition Acts.

Once you abandon the law, you abandon all the protections the law provides against the darkness of human nature.  It infects every level.  You HAVE to stick to the law.  The written-down, honest-to-God, this-is-the-compact-we-all-agreed-to law.

There’s a beautiful passage in Robert Bolt’s *A Man For All Seasons* (about St. Thomas More) that has gradually become the bedrock of my whole approach to politics.  I cannot resist reprinting it in full:

Alice More: Arrest him!

Sir Thomas More: Why, what has he done?

Margaret More: He’s bad!

More: There is no law against that.

Will Roper: There is! God’s law!

More: Then God can arrest him.

Alice: While you talk, he’s gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you’d give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake!

Okay, so what’s any of this have to do with the Republicans?

The Republican Party is, let’s face it, terrible at following the Constitution.  Like all men, ruled by passions, they find all sorts of excuses to ignore it when, say, a Muslim wants to build a mosque.  And you could list ways the GOP and its voters subvert the Constitution from now until next Wednesday without breaking a sweat.  They talk a good game about the rule of law and originalism and textualism and the Constitution and all that, but then they’re all, “No, it’s actually totes okay to torture these prisoners in violation of statute because, see, it’s not really torture.”  Full disclosure: I’m no better than the average human; I’ve done this. Hell, Justice Scalia did this every time he had a drug case.  The whole edifice of his towering intellectual defense of rule-of-law interpretations of the Constitution went out the window in Employment Division v. Smith and easily half a dozen others.

However, at least they hold the rule of law up as an ideal, and occasionally achieve it.  The Democrats went to war with the very *idea* of the rule of law decades ago, and never let up.

TLF: I remember reading about the Japanese-American internment in George Takei’s autobiography.

After thinking about that Rule Of Law thing for a few days, I believe it was an experience of this that propelled me in the libertarian/anarchist direction. I think it was even part of what had earlier made me not like America’s two main parties, before I really had a chance to like either of them. all being well, we’ll get into those on another day.

JH: I want to hear both stories.

Next post: James talks more about rule of law, America’s two main parties, and bring things up to current events. Please check out James’s blog, I’d suggest starting just after the primaries and working forward to the most recent entry, some of that will be spoilers for the coming posts, so… click your conscience!