What’s an oath worth? It shouldn’t be an issue, but because it is, Supreme Court Justice Antonin Scalia’s untimely death occasions far more than honoring and mourning a great and consequential man.
To be sure, we should all go as Scalia did, having lived a long and productive life, doing what we loved to do, and passing, peacefully, in our sleep.
Most don’t know that Abraham Lincoln was an exceptional lawyer, but he also had a genius for friendship. Many of his political enemies liked and admired him. The same was true for Scalia. Among his most devoted friends on the Supreme Court was Ruth Bader Ginsberg, as devoted a leftist as one can imagine. Scalia was perhaps the Court’s most devoted Originalist and Textualist; Ginsburg an unshakable follower of a “living Constitution,” yet Scalia befriended her.
I’ll not delve further into Justice Scalia’s accomplishments and virtues. They are many, which are already being well chronicled elsewhere. I pause to recognize him as a model Supreme Court Justice, to pray for the comfort of his many children and grandchildren and his wife, to pray for his eternal soul, and to wish him ave atque vale–hail and farewell. He was truly a steadfast defender of the Constitution, and as such, a warrior for America, human dignity and liberty.
What’s an oath worth?
There should be no political turmoil over the appointment of Scalia’s replacement because we–all Americans–must take seriously the oath of office of all Supreme Court Justices:
I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Most important in this oath, and that of the President, is swearing to support and defend the Constitution against all enemies foreign and domestic. If Americans took such oaths, and this oath in particular, seriously, as Antonin Scalia demonstrably did, if they held such solemn and binding vows sacred, and forced politicians to do no less, there would be no political turmoil because no politician–people who take a virtually identical oath–would so much as think to nominate anyone whose guiding principle was anything less than absolute fidelity to the Constitution. No President would dare, because they would know that any such nomination would be dead on arrival in the Senate, because every Senator would share that absolute respect for the Constitution, above all else.
What’s an oath worth?
There are essentially two competing philosophies abroad in American politics and, increasingly, in the judiciary at every level: Originalism/textualism and progressivism, manifested in the “living Constitution” ideology. Excuse me, gentle readers, as I generalize these concepts, understanding that I, like you, recognize that a complete explication of these philosophies is the work of books, not a brief article. Grant me, please, a little latitude.
Originalism, as explained by Antonin Scalia, is the belief that the Constitution must be analyzed, and is best understood, by discovering what the society that wrote it–the Founders–believed it to be. Textualism is the belief that the words of the Constitution have meaning, clear, specific, common meaning, understandable by all reasonable, literate people. One way to understand this is to say that the Constitution says what it means, and means what it says. After all, laws that the reasonable man cannot understand are, under the Constitution, void for vagueness. If the reasonable man can’t know what is and is not unlawful, how can he obey the law or be held accountable for failing to obey it? Words matter.
For example to originalists, “the right of the people,” to keep and bear arms means just that. To believe that “the people” means a government sponsored and controlled militia in the Second Amendment, but refers to individuals in the First, Fourth and Tenth Amerndments is irrational and deceptive, an attempt to ignore the plain language of the Constitution.
Proponents of a living Constitution see things very differently. To them, the Constitution is not the supreme law of the land unless it is endlessly fluid and evolving to support transitory and changing notions of what ought to be rather than what is, the most common contemporary term being “social justice.” This is a philosophy that exalts the ends over the means. If the social justice goal be worthy–and to social justice warriors, all social justice goals are worthy–the Constitution can and should be twisted, warped, or merely ignored to achieve it.
If gun control is a worthy goal–and to Progressives it is virtually a matter of religious doctrine–“the people” in the Second Amendment can mean whatever they want it to mean, and “keep and bear arms,” which obviously means “own and carry” means that gun ownership and the ability to carry arms abroad may be so restricted as to make it all but impossible to keep and bear arms, or such ownership and bearing may be entirely prohibited, reducing the right acknowledged in the Second Amendment to merely fading ink on yellowing paper.
Obviously, Originalists gladly accept a great many inherent limitations on the power of government, including the judiciary. If the Constitution does not, by its clear and easily understood text, grant government a specific power, the Tenth Amendment applies:
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.
For Originalists, the Constitution often, clearly and unequivocably, says “no,” and for the sake of liberty, rational and accountable government, they are willing to take no for an answer. They are able to say “this isn’t government’s business.” They can actually say, and mean “government doesn’t have this power; we can’t do it.” They are willing to forego personal enrichment and power because to do so is to uphold their oath of office, and to ensure truly equal justice for all. They accept the limitations of politics, for it is the job of the judiciary to tell politicians when they have gone too far, when they have crossed the line between lust for power, for control over the lives and fortunes of others, and what is constitutionally permissible.
This, of course, is anathema to Progressives, who accept no limitation on government, for such limitations are impediments to personal and governmental power. For them, what cannot be accomplished by the political process can be accomplished by judicial fiat, and by now-ample precedent, by royal, presidential decree. And all that stands in the way–in a time when the Congress is self-emasculated–is the Constitution.
The Constitution, with its three branches of government, was established because the Founders, among the most brilliant men of all time, well understood human nature and the lust for power. The Constitutional framework, if honored, limits the amount of power any individual, any branch of government, can have. It can prevent tyranny and secure the rule of law, but only if the people are willing to accept the limitations it imposes, and only if the people force their elected representatives to do the same.
And so we have come to Anno Domini 2016 in the Age of Obama when the Supreme Court has a 4/4 Orginalist/Progressive split with one justice, Anthony Kennedy, willing to float between the philosophies. Progressives would have us think this part of the normal interplay of politics. They would have us believe that fighting for ideological majorities on the Supreme Court, and the lower courts, is acceptable and part of our system. The ideology/party that can obtain a majority, by any means necessary, deserves to impose its ideology on the nation. After all, isn’t that democracy? Doesn’t the majority rule?
Not under the Constitution, but to them, that’s merely an inconvenience.
In effect, these progressive justices take their oaths of office, knowing they are lying, knowing they intend not to uphold and defend the Constitution, but to ignore and damage it at every opportunity. Thus do we have “stealth” Justices.
“Stealth” Justices are exclusively a phenomenon of the Left. No justice nominated and confirmed as a progressive has, to my knowledge, ever moved to the right, toward originalism and upholding and defending the Constitution. On the contrary, many justices nominated by Republican presidents, despite presenting themselves as believers in judicial restraint, once confirmed have immediately moved into the living Constitution camp, and never thereafter moved a step to the right.
Unfortunately, stealth is, for the most part, no longer necessary. When Sonia Sotomayor and Elena Kagan were questioned by the Senate, both expressed their full support for the Second Amendment, only to vote, repeatedly, against it at every opportunity. Surely no rational Republican Senator believed they supported the Second Amendment even as they lied about it, but confirmed them anyway.
In reality, we have on the Supreme Court not competing political parties, but a faction of four justices in the Originalist camp–men who actually honor, for the most part, their oaths of office, who decide cases based on the facts and the law, particularly the Constitution–and four men and women who do not, who are willing to ignore or twist the Constitution for partisan political purposes. The less said about the justice dancing between the two camps the better.
It shouldn’t matter. All Justices should be Originalists, men and women dedicated to the law, to the Constitution, which is, after all, made of words, words that have clear and easily understood meanings to the reasonable man. This is not a matter of esoteric, academic, philosophical debate, for unless one seeks in the Constitution only that placed there by the Founders, they cannot honor an oath to uphold and defend it against all enemies. Such people are the domestic enemies they promise to pursue in their oaths. No Justice should have anything to do with social justice or any other philosophy not grounded in the Constitution.
That we have come to this precarious place in our nation’s history explains a great deal, and potentially foretells our ruin.
We may allow Barack Obama, a man whose contempt for the Constitution and the rule of law will be the subject of many historical texts, to nominate yet another social justice sycophant, and the Senate confirm them, thus turning the Supreme Court into a reliable rubber stamp for the imperial presidency, the social justice movement, and the administrative state. Senate Majority Leader Mitch McConnell has suggested that this will not happen during Mr. Obama’s approximately 11 months remaining in office. Few Conservatives trust McConnell or virtually any of the Republicans in the Senate, and with good cause.
The Senate may also simply refuse to give consent for anyone Mr. Obama might nominate. This will–it already has–bring frenzied charges of obstruction against Republicans. Democrats will scream that Republicans are being un-American, that they’re thwarting the Constitution, and preventing the President from discharging his duties under the Constitution. But in effect, if the Senate does its constitutional duty, it will prevent Progressives from relegating, once and for all, the Constitution to a shallow grave.
That is precisely what the Senate must do, and without apology, as a first step toward returning the Supreme Court to an apolitical body of men and women whose only concern is fidelity to the Constitution, to limited government, and to maximum liberty for each American.
The Senate, under the Constitution, has this power. There is no time limit, no number of days under which a nomination must be voted up or down. The Senate is free to consent or to withhold consent, forever, if it wishes, for this is an integral part of the balancing of power. This is a feature, not a bug, of the limited government the Founders established, and among the limitations Progressives so despise and so labor to destroy.
A second civil war is not unthinkable. The unprecedented stockpiling of privately held arms and ammunition provoked by Progressives and led by Mr. Obama is not merely a transitory, reflexive reaction to the occasional proposition of anti-gun legislation. It is recognition that government is no longer responsive to the people, that it is no longer accountable, and that outright tyranny is only a matter of time. And more, that it holds the people in contempt. No longer can the people be certain of throwing out corrupt government in favor of an honest one. Many Progressives have come to believe they have the ability and the mandate to throw out the people and appoint one more pliable to their desires. More and more Americans, even some Progressives, see the very real, and very violent, potential should Progressives get their way.
When the courts can no longer be counted on to be a final check on unaccountable, unlawful political power, when the courts have become just another political branch, which, due to lifetime appointments, has even less accountability than the other branches, America is over.
It may be reasonably argued that we, if not already at that terrible point, are not very far away. The shifting of the balance on the Supreme Court from judges mostly dedicated to the Constitution to those entirely dedicated to social justice, will unquestionably, perhaps irrevocably, split America.
Should Hillary Clinton be elected President, a noble and last-ditch movement to restore the Constitution will be put on hold, perhaps for a generation, perhaps forever, but it is a movement whose time has come, and which must succeed, as Abraham Lincoln put it at Gettysburg:
…that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.
What’s an oath worth?