In February of 2016, upon the death of Antonin Scalia, I wrote: Antonin Scalia: What’s An Oath Worth? With the death of Ruth Bader Ginsburg, it’s time to update and somewhat revise that article.
What’s an oath worth? It shouldn’t be an issue, but because it is, Supreme Court Justice Ruth Bader Ginsburg’s death from cancer at 87 occasions far more than a routine nomination and confirmation process.
Among Antonin Scalia’s friends on the Supreme Court was Ginsburg, 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.
Scalia was truly a steadfast defender of the Constitution, and as such, a force for America, human dignity and liberty. All Supreme Court justices should be made of the same, stern stuff.
What’s an oath worth?
There should be no political turmoil over the appointment of Ginsburg’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. Progressivism, in the four years since Scalia’s death, has moved so far to the left it is essentially indistinguishable from socialism/communism. 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 mean and 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.
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 Amendments 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 D/S/Cs, 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 presidential decree—so long as the president is one of them. 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 2020, when the Supreme Court has a 5/4 Orginalist–D/S/C split with Chief Justice John Roberts willing to float between the philosophies. D/S/Cs 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 D/S/C 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 D/S/C 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 seldom if ever thereafter moved a step toward originalism/textualism.
Unfortunately, stealth is, for the most part, no longer necessary. When Sonia Sotomayor, the self-annointed “wise Latina,” and Elena Kagan were questioned by the Senate, both expressed their full support for the Second Amendment, only to vote 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 out of a belief that a president should be allowed his nominees as long as they are minimally qualified.
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, including the domestic enemies they take an oath to combat. 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.
Senate Majority Leader Mitch McConnell appears ready and able to ensure Amy Coney Barrett will be confirmed prior to the election. This is a necessary step as D/S/Cs have made plain they intend to turn the election into an extra-constitutional abomination. A full Supreme Court will almost certainly be called upon to resolve many issues. It is imperative its majority render decisions based on the Constitution.
The Republican Senate, under the Constitution, has the power to confirm Barrett. There is no time limit, no number of days under which a nomination must be voted up or down, no holy “average.” As Barack Obama so crudely put it: “Elections have consequences.” 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 D/S/Cs so despise and so labor to destroy.
A second civil war is not unthinkable. D/S/C threats to entirely change the rules when their totalitarian policies cannot win elections provokes in normal Americans the recognition of just how easily and quickly government may become no longer responsive to the people, no longer accountable, and that outright tyranny is only a matter of time. More, they are convincing the nation they hold the people in contempt. No longer can the people be certain of throwing out corrupt government in favor of an honest one. Many D/S/Cs 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 D/S/Cs who are, for the first time, buying guns, see the very real and very violent potential should D/S/Cs 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, America is over. D/S/Cs are counting on it.
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, by threatened court packing, from judges mostly dedicated to the Constitution to those entirely dedicated to social justice, will unquestionably, irrevocably, split America.
Should a mentally declining Joe Biden be elected puppet President, a noble and last-ditch movement to restore American constitutionalism, the rule of law and equal justice for all 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?