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The Inconvenient Truths Staring Us in the Face

Quite a few conservatives, beginning maybe with George Will, are saying that the victory of Trump would be the end of conservatism. Others, maybe beginning with Damon Linker, are saying that the nomination of Trump signaled the end of conservatism. There are many ways of evaluating such claims. Here’s one.

Trump isn’t going to win the election. A narcissistic amateur—a flim-flam man in way over his head—is being sliced and diced by a coalition of all the country’s respectable experts. All means necessary will be deployed to defeat him, but probably no more will be necessary beyond the recent “bragging about groping” tape. The spectacularly self-destructive Trump is doing the rest on his own.

I’m not denying, of course, that all the experts are right to think he’s unfit to serve. Still, at this point: If you’re going to vote for a candidate who might win the election, you’re going to vote for Hillary Clinton.

The success that Trump has had so far, however, has been most impressive and equally instructive. He’s revealed the hollowness of the existing definitions of conservatism, and he dashed the hopes of many a conservative reformer.

The definition of conservatism that is favored by Will and other “originalist” interpreters of the Constitution, such as Randy Barnett, is that the change we can believe in will come mostly through “judicial engagement.” Our Framers were about protecting individual rights and against oppression by legislative majorities—or what they called “majority factions.” From this view, all forms of majoritarianism tend to be collectivism, and the resulting “general will” is often at the expense of “individualism” or the freedom of particular persons.

Our Framers thought liberty was the bottom line, and so in many respects they distrusted democracy. And they certainly wouldn’t have embraced the abdication of judicial responsibility that allowed the Court to defer to the democratic expansions of government that constitute the endlessly amorphous welfare state.

As a result of various Supreme Court appointments by Republican Presidents, Will and Barnett notice, the Court has been lurching unevenly in the direction of more aggressive engagement. Sure, it came up short in the key Obamacare decision, but one can still see in, for example, the opinions of Justice Kennedy an unevenly fervent dedication to the “presumption of liberty” in evaluating laws and policies for their constitutionality.

It’s time for Republicans, Will and Barnett say, to stop using the phrase “judicial activism.” It has negative connotations. Our Court should be active or engaged on behalf of the Constitution and individual rights.

One problem with this optimistic line of argument is that the justices praised for their engagement so often were appointed in reaction to perceived activism. Republican Presidents have repeatedly pledged mainly to appoint justices who would reverse Roe v. Wade (1973). Subsequent abortion decisions, of course, have been condemned as particularly egregious examples of an active or engaged Court, one that removes abortion policy from legislative deliberation (and often compromise), and “resolves” the issue on the basis of the high constitutional principle of individual liberty.

In Planned Parenthood v. Casey (1992), the Court even said it had definitively resolved the question of abortion and no more deliberation is needed. Roe, claimed the Court, is a kind of superprecedent that is as firmly established as Brown v. Board of Education (1954). Bringing up the possibility of significant legal restrictions of abortion is now considered as anti-constitutional as bringing up the possibility of a return to racial segregation.

The same approach to using “liberty” to resolve matters formerly assumed to be under the domain of state legislatures was followed in the Obergefell case in 2015 that announced the new right to same-sex marriage. Talk about judicial engagement! The Court gets to tell us what marriage is, without specific guidance from the actual text of the Constitution.

Our conventional view of constitutional law now rests on two forms of observed evolution in American political economy. The first is the kind that got the Court to back off on the feds’ economic regulations, given the changed conditions of the contemporary economy. This evolution is basically anti-individualistic, insofar as it slights the rights of free individuals in the face of big government on issues such as health insurance and eminent domain.

On this front, evolution or “living constitutionalism” has meant judicial deference, against which the libertarian originalists hope to encourage a new birth of judicial assertiveness on behalf the individual.

The second form, by contrast, claims to serve the individual against the moralism of government on abortion, marriage, and so forth. Thanks to the Court’s timely judicial engagement, Justice Kennedy claims individuals have become more free in this generation than they were in the one before. Presumably, as this evolution continues, new dimensions of liberty or autonomy will be discovered on the right side of history.

To highlight a big takeaway: The first form of observed evolution has in general been anti-individualistic, as government’s domination of the economy, and its constant output of more regulation, continue to push us down the road to serfdom.

There is another way of looking at this, favored by some libertarians and by Hillary Clinton in her secret teaching to Goldman Sachs. The progress of American individualism—a growing number of elderly persons and a dearth of babies—combined with the techno-development of the division of labor—will cause our entitlements, as well as our remaining pensions, unions, employer and employee loyalty, and various other forms of employment security—to wither away. Here we are supposed to find a new—an unavoidable—birth of individual liberty in the emerging world of independent contractors marketing their flexible skills. From this vantage point, the road to serfdom never arrives at serfdom.

The trouble with that optimistic view of the arc of liberty is that it’s contradicted by changes in public opinion. Fewer Americans—and especially fewer young Americans—think first and foremost about economic freedom. And that rebellion against “neoliberalism”—including against open borders and perfectly free trade—is bipartisan. It’s an important reason behind the youthful voters drawn to Bernie Sanders on the Democratic side, and also middle-aged voters drawn to Trump on the Republican side. The young might be called “libertarian securitarians,” wanting a secure environment in which to choose safely diverse modes of self-expression. Meanwhile the older group is nostalgic for an America where safety nets of all kinds were secure, and where it was easier, in these voters’ recollection, to live a life of relational dignity as respected American citizens, parents, friends, and creatures.

Now, Clinton may have given private assurances to members of our “cognitive elite” that she needs to talk up the plight of the economic losers but doesn’t intend to do much of anything that would impede the dynamism of the global marketplace. But she’s stuck with a party that lurched to the Left under the influence of Sanders, and likely a Congress that will want to take further steps toward significant “Progressive” economic reform.

The evolution of the division of labor has generated an equal (or more) and opposite evolution in public opinion, as I say, and I would go further and characterize it as reactionary. But “reactionary,” of course, suggests that there are economic forces that can’t be countered effectively by political decisions, and we shouldn’t be either Marxist or libertarian enough to succumb to that lullaby. I wouldn’t bet against any counter-trend that has the support of both Sanders and Trump supporters, and anyone with eyes to see knows that “classical liberalism” has had a terrible year.

The second form of evolution, typified by Justice Kennedy, has been about the individual defining himself according to his own lights in his or her relational life free from the coercion of the state. Who can deny there’s been one victory after another for individualism or personal autonomy—driven by the Courts and other expert elites—over the moralistic animosity that inspires the collectivism of the majority of ordinary people?

Now in the case of Barnett in particular (Will has gone strangely silent on issues such as abortion and marriage), it’s clear that the goal is more freedom across the board. Barnett agrees with Kennedy, for example, that Obamacare should have been overturned and also that there’s a constitutional right to abortion, and another constitutional right to same-sex marriage.

But that view has never been the mainstream conservative view, which is equally hostile to both Obamacare and Roe and its successors. The basic libertarian originalist case for judicial engagement has been parasitic on the partisans of the judicial restraint that would get the Court out of the marriage and the especially abortion businesses. The justices who are touted as the apostles of judicial engagement owe their seats on the bench to voters wanting judicial restraint.

Given that Trump is unlikely to win the election, all conservatives will have to reconcile themselves to the unwelcome fact that the “Progressive” judges appointed by the second President Clinton won’t be interested in using judicial review to roll back big government or the welfare, administrative state. That lane of the road to serfdom will be encountering less and less judicial resistance.

And the new Court will be equally keen to expand protections of the individual or autonomous person against the moralism of legislatures. We already see that one result of this will be the constraining of the free exercise of religion. We can see in many “Left” or “lifestyle” libertarians, beginning with presidential candidate Gary Johnson, the prioritizing of “nondiscrimination” over religious liberty.

Now there are libertarians (or extremely classical liberals), such as Richard Epstein and John McGinnis, who mainly think of their agenda as being about leaving people alone to define themselves in authoritative, voluntary communities such as the church. But their view is not the one that’s surging now. The Court, we can see, will be very selective, at best, in protecting the right of people to live according to their convictions as members of communities, as vibrant, observant parts of various authoritative “intermediate associations.” It’s on this front that an alliance of judges, bureaucrats, and other experts will advance part of the intrusive agenda of soft despotism—or the elitist scripting of the lives of ordinary people. The lonely right of conscience will remain, but not as a way of inspiring effective dissent against the fashionable prejudices of our time.

The form of libertarianism that is surging now is based on a kind of atomistic individualism and it is the truest friend of a degrading—and deeply undemocratic—form of collectivism. That’s the form that most contributes to the sapping of the resistance to the expert-driven administrative/corporate abolition of political life, the real life of citizens.

So maybe one good thing about the rise of Trump and the election of Clinton is that conservatives will abandon their illusions about our courts being reliable defenders of our liberty. It probably never was the true job of the Court to protect us from Obamacare. Surely the Republicans should have spent their quality time trying to elect a President who would take it out, instead of waiting for the Godot that is judicial review.

Most of the excesses of the administrative state can, moreover, be undone by congressional legislation. President Obama’s unconstitutional executive orders can be unordered by the next President.

Above all, can we not lay aside the notion that the Court is going to protect religious liberty? In this respect, it’s easy to see why quite a few of our Evangelical leaders have decided that there’s no substitute for relying on an elected leader such as Trump (even if they’ve been misled on how constitutional government actually works, and on who the oafish, incorrigibly ignorant buffoon Trump really is).

Here’s what is most needful: a restoration of the dignity of legislative deliberation and compromise as reconciling the human goods and diverse opinions that characterize a free people in a flourishing society. One way to make a start would be to remember that our Framers, in truth, thought of legislative deliberation channeled through strong institutions as the norm—they thought of  judicial review the exception—in giving us good government that protects individual rights.

Now, you might say, the result of the coming election might be the Democrats controlling the presidency and Congress, and the Court soon enough. Not much room for deliberation there! For one thing, it’s likely, despite the hollowness of the Democratic Party that was exposed this year, that they will regain both Houses in 2018. On the other hand, if there’s one thing Republicans are good at, it’s winning off-year elections, and this time it would be a natural reaction to Clinton’s basically unearned control of the political branches.

Then will come the hard and perhaps humbling work of compromising with President Clinton, undertaken in the undeluded recognition that Republicans will not elect a President or control the Court any time soon. In retrospect, of course, it’s easy to be astonished at how little leading Republicans planned for winning November’s presidential election, given that their congressional behavior has been premised on that likelihood.

Those Clintons, however, are nothing if not pragmatic; they adjust as well as anyone to changes in their environment. We should remember back to 1994, and how much better President Clinton became in the realm of domestic politics after the dramatic Republican congressional landslide of that year. We might even remember that he and House Speaker Gingrich—two kindred souls in many respects—were about to get down to the business of sustainable entitlement reform when the Lewinsky affair broke (and Newt had to feign indignation). There probably will not be sex scandals rocking the administration of the second President Clinton.

The populism of Trump should show us conservatives, at least, that conservatism had grown too undemocratic, too oligarchic, too detached from the republican deliberation of citizens about their common future. The same, of course, is true of the expert-driven liberalism that had grown too contemptuous of and too driven by the intrusive scripting of the lives of so many deplorable ordinary Americans.

Reader Discussion

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on October 18, 2016 at 09:50:39 am

Excellent essay!

It does seem that the root cause of an overly powerful, over-stepping Executive and Judicial Branch is a dysfunctional ineffectual Legislature, and therein is where corrective action is so vitally necessary and to be concentrated. Can it not be expected that the two other co-branches will naturally fill (proportionate to their particular leverage) any amount vacuum left by the contraction of the third?

Whereas an unchecked Executive is most apt to tend towards Monarchism, just as an unchecked Judiciary will tend towards Oligarchism, a bicameral Legislature, even when unchecked, alone poses the least threat to a Democratic Republic.

Did the Framers of the Constitution, therefore, intend the Legislature, this branch, because its power is inherently diffused, to function as a sort of "first-among-equals" among the three branches, as a means of insuring that the other two branches most susceptible to abuse, remain in balance and restrained?

In my view, not until Congress is reformed can it be expected that the Executive and Judicial will begin to refrain from their various abuses and to cease in their over-expansion.

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Paul Binotto
on October 18, 2016 at 10:34:56 am

it’s likely, despite the hollowness of the Democratic Party that was exposed this year, that they will regain both Houses in 2018. On the other hand, if there’s one thing Republicans are good at, it’s winning off-year elections, and this time it would be a natural reaction to Clinton’s basically unearned control of the political branches.

I would predict the opposite: Republicans will retain control of the House of Representatives this election. They will lose control of the Senate—but retain control of at least 41 seats, thereby retaining the power to filibuster. True, the Democrats might then exercise “the nuclear option” and eliminate the supermajority cloture rule—but they would be reluctant to do so, given what’s gonna happen in 2018.

2018 will be an off-year election, and the party that does not hold the White House generally gains. So I would expect the House to remain in Republican hands. And in the Senate, Democrats are expected to have 23 seats up for election, in addition to 2 independents who caucuses with the Democrats, while Republicans are expected to have 8 seats up for election. Given these odds, it’s hard to imagine Republicans couldn’t pick up the meager number of seats they’ll need to gain a majority.

The 2020 elections will be the wildcard. It’s rare for any party to control the White House for four terms in a row, so we might expect Republicans to do well at the top of the ticket. But the party has managed to thoroughly alienate women and ethnic minorities. Women have long been the majority of voters, and as society ages and men die at earlier ages than women, I expect this dynamic to grow. And the share of ballots in non-white hands will only grow, too. Heck, if we launch a new Freedom Ride to register minorities in Texas, that state would turn blue overnight. And the final nail in the GOP presidential coffin: Any candidate who might seek to appeal to these demographic groups would be unable to win a primary dominated by aging white nationalists.

So until those nationalist die off, the Republicans may be excluded from the White House. But who knows? Maybe some well-timed terrorist attack will change the public mood.

In the 2020 Senate, Republicans will be defending 22 seats, while the Democrats will have to defend only 11. So it would not be surprising to see Democrats regain control.

But the Democrats will probably still not gain control of Congress due to gerrymandering. It has long been the case that Republicans win a minority of Congressional votes, yet gain a majority of seats due to gerrymandering. So the bigger deal will be at the state level. Whoever wins control of the state legislatures in 2020 will be able to gerrymander the Congressional districts for the next ten years.

We’ll see what happens four years hence.

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nobody.really
on October 18, 2016 at 10:39:16 am

"It does seem that the root cause of an overly powerful, over-stepping Executive and Judicial Branch is a dysfunctional ineffectual Legislature, and therein is where corrective action is so vitally necessary and to be concentrated."

It may also seem that the "root cause" of a "dysfunctional ineffectual Legislature" lies in an equally ( or more) dysfunctional electorate from whose delegatory powers any "corrective" action might come.

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R Richard Schweitzer
on October 18, 2016 at 12:08:47 pm

1) Who knows who is going to win the election. Currently Clinton is up by about 4 points, but in politics things can change very quickly.
2) No doubt that many of the Republican justices were appointed in response to liberal judicial activism. But this says nothing about what the correct mode of interpretation is.
3) There are plenty of ways to challenge Roe/Casey and Obergefell without just broadly deferring to the legislatures in which judges give up their duty to interpret the Constitution.
4) Can you point to a single proponent of “judicial engagement” saying that Obergefell is a good example of it? Stop attacking straw men. You even say that the decision does not rest on the “actual text of the Constitution” which proves that it is not “judicial engagement.” “Judicial Engagement” tells judges to decide the meaning according to the Constitution and not just defer to the legislature. You have just proven your own argument wrong.
5) It’s true that many young Americans don’t “think first and foremost about economic freedom.” But I would argue this is not a new phenomenon, nor is it “fewer Americans” as you claim. The sad fact is our education system is horribly corrupted by liberal progressives who are failing our children. But this has been going on for some time. After people graduate from school and enter the real world, they learn the benefits of economic freedom.
6) Yes, it hasn’t been a good year politically for classical liberalism, but then neither one of these candidates is supported by the American people or likely to do well once in office. So whichever one wins is likely to be repudiated which could be a very good thing for classical liberalism.
7) Yes, you may be right about how the Clinton appointees to the Court would push the law. But that says nothing about what the proper way of interpreting the Constitution is. Just because the Clinton appointees would be wrong doesn’t make you right.
8) Courts wont always protect liberty, that’s true. But that’s no reason to abandon the Courts or to not demand that the Court do its proper job. Ask them to do what is right, and tell the world they should do what is right, even if they choose to do wrong.
9) I wish the legislature would not violate rights, then judicial review would be the exception. There are areas delegated to legislatures to pass laws, and within those areas I would love to see more deliberation and compromise. But don’t say we need more deliberation and compromise on if our rights should be violated, that I will not accept.
10) I would love to have good elected politicians and good judges. Its not an either/or decision.
11) I’m not a supporter or Trump, but he is THE populist candidate. His policies are not “undemocratic” or “oligarchic.” But I would agree that many of the Republican party’s leadership has lost touch with their political base. The base no longer trusts them, which is sad. They see them too willing to engage in crony capitalism and align themselves for corporate interests above the people. So when republican leadership supports things like immigration reform or free trade, too many of the republican base are suspicious that the Republicans leadership are just looking out for corporations again. The Republican base is right that the Republican leadership does try to give special benefits to corporations too often. But that doesn’t mean immigration or free trade are bad. I hope the Republican leadership can re-establish its trust with its base that it wont give corporations everything they ask for, and that the base will start to listen to the leadership on free trade and immigration reform again. We can hope.

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Devin Watkins
on October 18, 2016 at 12:21:23 pm

Without question, you are correct! And, it seems the electorate wrongly concentrates on and decries the Executive and Judiciary as the source of problem, when these two branches merely reflect the result of a failed Legislature. The people are barking up the wrong tree, or at least, the wrong branch.

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Paul Binotto
on October 18, 2016 at 12:42:53 pm

" Heck, if we launch a new Freedom Ride to register minorities in Texas, that state would turn blue overnight. And the final nail in the GOP presidential coffin: "

Heck, "coffins" and voter registration drives!

Is this an admission that the Dems are out actively prowling cemeteries again for new voters.
I would caution against this as those places can be positively frightful around Halloween time!!!!

I suspect you are correct however, re: GOP keeping the House. Senate seems to be in play. However, even if GOP keeps 41 votes, I am not so certain that it would be sufficient to prevent clinton appointments to court as GOP is always weak-kneed and seems to enjoy being the stepchild of the Dems and the media.

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gabe
on October 18, 2016 at 12:49:25 pm

” Heck, if we launch a new Freedom Ride to register minorities in Texas, that state would turn blue overnight. And the final nail in the GOP presidential coffin: ”

Heck, “coffins” and voter registration drives!

Is this an admission that the Dems are out actively prowling cemeteries again for new voters.

I visited my brother in Chicago (go Cubbies!) during an election season, and there was some public service add on TV panning across tombstones in Arlington Nat. Cemetery while a voice-over intoned, "These men gave their last full measure of devotion for your rights. So this election, be sure you register and vote...."

My brother would imitate the voice to say, "This election, all these people will be voting; why not you?"

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nobody.really
on October 18, 2016 at 12:52:16 pm

Yeah to all - except immigration. There is a time for it AND a means / method for controlling it. Neither the time nor the means, at this juncture, would appear to be propitious.

Absotively - on judicial review *provided* it is consistent with the constitution.

Yet, Lawler is correct about the effects of atomistic individualism and how some recent judicial determinations are representative of that AND that, unfortunately, some of the *engagers* are prone to this type of interpretation. My concern, as always, is with the unintended consequences of such decisions and the resultant expansion of government intrusion into the lives of the citizenry as "we" (read: governmental bureaucrats) attempt to manage the inevitable *collisions* among the populace.

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gabe
on October 18, 2016 at 13:13:13 pm

And now for something completely different:

I don't think Trump's win or loss will mean a damn thing to "conservatism" (such as it is, or purports to be).
THE TRUMPSTER is NOT a conservative - never was, never will be!
The Trumpster is simply an embodiment of (trigger warning here, kiddies - graphic content to follow) of a time honored and extremely versatile New York expression: *Fug'em!!!! used as a rejoinder ./ defense against all manner of annoying, irritating, frustrating, and silly situations / conditions. It (He is) is an expression of contempt, rejection, opposition and hostility, yet tempered, in some small measure, with some humor (gallows or otherwise) against what is perceived as the rampant stupidity . hubris, arrogance and disdain of the powers that be.

To argue that this represents either conservatism or a viable / sustainable trend in politics is somewhat off the mark.

The GOP elites are not going to change. They will continue to demonstrate disdain for the common voter. They too view these voters as deplorable. In their eyes, they need not change a thing. I suspect that their Big Donor - crony friends will not perceive the need for change either.

Conservatives are a small and apparently diminishing, fractious segment whose need for ideological purity is belied by their willingness to provide support, albeit cloaked, for the candidate of the Progressives whilst they argue amongst themselves as to the best way to institute their own utopian agendas. They too will chalk up the coming defeat to the "stupidity and ignorance" of the common voter (not without some justification, BTW) - and will continue their little lucrative "think-thank" entrepreneurship.

And the Dems will continue to stroll along, virtuous heads held high, signalling to all that they are indeed at the forefront of the march of history. Staffing will rise in the Fed Admin State further enabling them to *minister* to the needs of the deplorables.

Of course, we will blame the Black Robes and within a certain sphere this is proper.

The fault, Dear (conservative / GOP) voter, lies not in our stars, but in ourselves that we are underlings - AND all too regrettably Happy underlings weighing which of the (political) stars will provide us with more goodies - OR at least more fodder, better suited for the pages of People Magazine or National Enquirer.

The recriminations do, indeed, promise to be interesting!

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gabe
on October 18, 2016 at 13:16:42 pm

Hey brudda - Absotively luvv'd it!

And Yep, go Cubbies!!!!

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gabe
on October 18, 2016 at 13:20:08 pm

Well with immigration we might disagree about the exact solution, but our current immigration system is woefully dysfunctional. I'm all for having strong borders to make sure terrorists and other criminals are kept out, but we need to allow a lot more legal immigrants in (under work visas etc.) so they would rather go that route rather than enter legally (and the economic benefit they would provide).

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Devin Watkins
on October 18, 2016 at 14:42:17 pm

*Illegally (I wish we could edit our comments)

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Devin Watkins
on October 18, 2016 at 14:56:00 pm

More precisely, the senate was meant to be first among equals. It has the power to say "no" to proposed legislation and appointments. The senate can even remove a president from office. But the character of the senate has changed so much from its original design that it no longer functions in the role of restraining bad government.

The votes of senators are published, and their conversations are all broadcast to the public which makes it all too easy for the power-hungry and greedy to manipulate them. That is where the reforms should lie.

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Scott Amorian
on October 18, 2016 at 21:11:54 pm

Despite the rhetoric in the above lengthy essay plus the various and sundry comments made by readers,the bottom line is that the American Republic died in 1865 with Reconstruction along with the enactments of the 14th,16th and 17th Amendments,the Federal Reserve Bank plus the New Deal,the Great Society,The Civil Rights Act and the Patriot Act,among other legislation, America has morphed into a collectivist mobocracy empire that has,with the welfare/warfare state,bankrupted the nation.
The "Conservatives" have accepted all 10 Planks to the Communist Manifest(albeit in modified form). Everything from Income Taxes,Estate Taxes,Public Education,Central Banking plus the Regulatory State among other things. The Republican Party has become the party of "me too Socialism." These Republicans and their "conservative" brethren argue about how many Supreme Court Justices can fit on the head of a pin meanwhile,over the past 100 years or so the Progressives(socialists) have gotten everything they wanted. In essence the Fabian Socialists have won and the Republican Party "conservatives" have been doing nothing more then fighting a rear guard action. The Republic is dead,the democracy will follow and soon America will become a fascist police state. You can count on it.

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libertarian jerry
on October 18, 2016 at 21:24:17 pm

Good point. Interesting that you tie published votes and broadcast proceedings to a weakened Senate and greater susceptibility to corruption. C-Span likely does deter Senators (and Representatives) from taking the tough stand that doesn't play well to an audience; Was there a time when Senators votes were not published?

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Paul Binotto
on October 20, 2016 at 11:17:46 am

"There probably will not be sex scandals rocking the administration of the second President Clinton."

A steady supply of viagra and interns for the First Gentleman could prove this wrong.

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J.R.
on October 20, 2016 at 16:17:51 pm

That's why I said probably.

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Peter Augustine Lawler
on October 20, 2016 at 19:04:26 pm

Let us hope that these scandals DO NOT involve the Fat Lady in a Pantsuit.
That would be more than my delicate constitution and my failing eyesight could handle.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.