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Which Constitution Will We Live Under?

The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.

Trumpism is inconceivable without the pairing of, on the one hand, a populist core driven by economic dislocation to the arms of a would-be savior and, on the other, an immovable bedrock of cultural conservatives who have embraced—out of a desperate desire to dislocate the status quo, but a desperation that seems to have morphed into an unaccountable enthusiasm—a candidate who obviously does not share their values personally and probably does not believe in them politically.

Both of these bases are traceable to the Progressive constitutional philosophy they purport to reject. The populism derives from its original strain—Presidentialism, which promises executives who are not merely chief magistrates but salvific figures. The second is not a derivative of but rather an immune reaction to Progressivism’s post-New Deal mutation: judicialism, which has frustrated the ability of cultural conservatives to act on their values.

The first—Trump’s economic populism—is dually flawed. It assumes both a magical economic power that conservatism has, to now, held government wields destructively but not constructively, as well as a concentrated presidential power of which conservatism, being wary of power generally, has also long been suspicious.

The best evidence of Trump’s unconservatism is his fanatical use of the first-person singular: “I will make America great again”; “I am the only one.” This sounds very much like then-Professor Wilson’s monomaniacal conception of the presidency:

His is the only national voice in affairs. Let him once win the admiration and confidence of the country, and no other single force can withstand him, no combination of forces will easily overpower him. His position takes the imagination of the country. He is the representative of no constituency, but of the whole people.

Save for the comparative sophistication of Wilson’s theory—who had at least worked his out; Trump’s take is simply his own reflection staring back from the water—these are indistinguishable. Yet Wilson had the honesty to assault the Constitution forthrightly. Trump claims a latter-day devotion to original intent. His remedial constitutional education should start with Article I.

That provision delineates the powers of the First Branch, Congress, with which a President Trump would share power and from which much of his own authority to execute the law would derive. Thus James Madison: “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.”

Wilson’s view of the presidency triumphed in the 20th century, somewhat in fits and starts, but it certainly has been ascendant since the Cold War. President Obama’s use of executive authority has pushed it in heretofore unknown directions domestically. But a President Trump, elected on an explicit platform of salvation, would mark its perfection. (Hillary Clinton, too, is a devotee of presidentialism, unlike Trump, she does not promise a break with the Progressive past.)

Even President Obama’s flamboyant nomination promises in 2008—we would remember that “this was the moment when the rise of the oceans began to slow and the planet began to heal”—were made in the first person plural. Here, by contrast, is Trump announcing his candidacy (emphases added):

I’ll bring back our jobs from China, from Mexico, from Japan, from so many places. I’ll bring back our jobs, and I’ll bring back our money.… I will build a great, great wall on our southern border. And I will have Mexico pay for that wall. … I will stop Iran from getting nuclear weapons. … Sadly, the American dream is dead. But if I get elected president I will bring it back bigger and better and stronger than ever before…

Suffice it to say that we are safe from Wilson’s fear that some presidents “deliberately held themselves off from using the full power they might legitimately have used, because of conscientious scruples, because they were more theorists than statesmen….” We are on to a new threat, which Wilson regarded as an opportunity. The professor again:

And in proportion as the President ventures to use his opportunity to lead opinion and act as spokesman of the people in affairs the people stand ready to overwhelm him by running to him with every question, great and small. They are as eager to have him settle a literary question as a political; hear him as acquiescently with regard to matters of special expert knowledge as with regard to public affairs, and call upon him to quiet all troubles by his personal intervention.

Only a docile people would not be insulted by this notion of adults running to a parent figure for advice on every question, whether it pertains to government’s scope or not. Conservatism used to conceive of that scope narrowly. The assumption was that the private sector “create[d] jobs” unless impeded by the public sector. The further assumption was that jobs came from economic activity. Now the banner of conservatism is carried by a demagogue who, in his personal name, promises to create jobs politically by restricting economic activity.

What is this but the parent figure of Wilson’s conception? (“You have 24 days to make every dream you ever dreamed for your children, for your family for your country to come true.” One guess: Who said it, Willy Wonka or Donald Trump?)

What is portrayed as Trump’s empathy, it should be added, is wholly different from a constructive political response to what is unquestionably serious and persistent economic distress, which can range from alleviating poverty to supporting job retraining to creating conditions that reward innovation. But central to those, at least to the last of them, is a recognition that there are certain things government can do well, but the public sector cannot, nor should it, compel private-sector employment, much less along politically specified geographic criteria.

Meanwhile, if Trump’s inflamed conception of the presidency marks the triumph of constitutional Progressivism, his support among religious conservatives is a reaction against it. Progressivism mutated in post-New Deal jurisprudence when jurists who had believed in judicial deference for purposes of Franklin Roosevelt’s legislative program suddenly supported an active judiciary for promoting rights to which, on the basis of indecipherable standards, they accorded special status.

The results, including Roe v. Wade and, more recently, U.S. v. Windsor and Obergefell v. Hodges, have effectively disenfranchised religious conservatives who would otherwise have been able to make arguments for their political views in the political arena, a place where they could have won or lost fair and square. Losing there would still have bruised them, to be sure, but it would not have deformed politics nearly as much as the wholesale attempt to delegitimize their views.

Instead, political parties have aligned almost precisely along views on these issues—Roe in particular—and frozen immovably, such that according to one report, a conference call on the Republican Party’s nominee for President of the United States boasting about sexual assault, which under any normal political condition ought to be disqualifying, featured a member of Congress making an apologia for Trump on the grounds that abortion was a more important issue.

It is more important only insofar as Roe has left no outlet for it other than to inflame the stakes of every judicial nomination and, consequently, every presidential election. By contrast, leaving such matters to the discretion of local majorities would allow variation in policy while also allowing people who feel disenfranchised to express themselves politically. Under such circumstances, there is no chance of abortion or same-sex marriage being everywhere banned and every chance of people’s minds changing—in either direction—over time. (Justice Kennedy’s tendentiousness aside, liberty finds every refuge in a politics of doubt, one in which people who lose today have a hope of winning tomorrow.)

It is entirely possible a substantial political realignment might result as voters and candidates who currently feel trapped by judicially driven disputes reconsider other issues on which they do not align with their party identifications today. Certainly fewer would tolerate the bad behavior of either candidate in this cycle if the centrality of the judiciary did not so inflame the stakes of the next Supreme Court nomination, and with it, the election of the next president.

But the Court is so inflamed. Consequently, even if it is not reasonable to believe Trump is genuinely committed to the type of justices he claims, it is wholly reasonable to be profoundly concerned about the future of the judiciary. Yet the fact that such could drive presidential elections in the face of such an otherwise abhorrent nominee, who is obviously so loosely committed—if that—to the issues in question, indicates that the burner heating the Court needs to be turned down. The problem is that the political branches are waiting for the justices to reduce their own heat. Elected officials are the ones who need to reach for the dial.

But the constitutional tenets of contemporary Progressivism cannot tolerate the Court occupying an ancillary place in national policy rather than a central place. Trump is not a break with this anti-Constitutionalism. He is the culmination of it.

Reader Discussion

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on October 17, 2016 at 09:07:48 am

The thing that might save us from Trump is that he hasn't thought about much of anything public, and therefore he doesn't have much stake in what in preaches. We know that Hillary has thought a lot about what she believes, but I'm not sure that helps her a lot. The fundamental problem arises from the "solution" progressives brought to the problem corporations posed to our 1870 Constitution.Unfortunately, we can't return to our 1791 Constitution nor can we retreat from the 1937 constitutional revolution, so we're stuck with the Progressive "solution" that is slowly killing us.

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Ron Johnson
on October 17, 2016 at 11:13:41 am

1) Let's all get over the fact that The Trumpster is NOT a conservative. He is the GOP nominee NOT the conservative Party nominee. No need for us to preen our conservative creds, here, kiddies! Conservatives have done so well over the past 50 years that they could not elect a candidate for the local dog-catcher vacancy and now conservatives wish to make political hay over the fact that THE GOP nominee is not conservative. Really?? When was the last conservative nominee of the GOP? why the big deal now?
2) Let conservatives examine their own shortcomings both philosophically and practically / tactically over the past several decades. Did they accomplish much of anything? Ummm - that would be a big fat NO!
3) why the fuss over a non-conservative nominee for the GOP. It WAS the GOP controlled Senate who permitted these 3rd rate jurists to ascend to the bench. Where was the outrage? the resolve to uphold *conservative* understandings of the constitution?
4) Nope, The Trumpster is simply the inevitable result of a failure of the *conservative* leadership to adhere to principles.
5) And now, we see GOP / conservatives actually working against the nominee of the party to which they express allegiance - and doing this in the face of an opposing nominee who (and this IS known to all politically awake citizens) will do even more damage than the The Trumpster - BECAUSE - she has a record of doing so.

Yep, as I've said before "This country was much better off when the overwhelming majority of the citizenry could NOT name a single member of the Black Robes." But guess what? That state of affairs is long since past. Judges DO exercise such an inflated role and "What do you think The Fat Lady in a Pantsuit is going to do with the Court (aided and abetted, of course, by a compliant, "Just Happy to be here,M'am" GOP Senate"

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gabe
on October 17, 2016 at 14:50:19 pm

Sorry. Could someone explain to me again why the conservative community is not up in arms to fix the electoral college and make it work the way it was intended? It was meant to keep the appointment of the president from being the populist mess it is today, was it not?

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Scott Amorian
on October 17, 2016 at 15:25:54 pm

The electoral college allows each state to choose for itself whatever way it wants how to choose the electors. Most of the states have tried to maximize their relevance of their population by "assigning" all of the electors to one candidate or another based on a popular vote. For a state to back off from that and not popularly elect electors would in effect be a unilateral disarmament for any red or blue state. Imagine if Texas did this and directly elected electors, then the democratic candidate could try to pick off one or two of the electors. Maybe you could get some kind of compromise in a swing state, but it seems unlikely, and even more unlikely in very red or very blue states.

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Devin Watkins
on October 17, 2016 at 15:52:37 pm

Yep!!! - and all this during a time when a number of States are seeking to establish a "Compact" that would assign ALL the electoral votes of those State parties to the Compact to the winner of the national *popular* vote - irrespective of the specific vote tallies in each of the States within the compact.

Gotta luv them Dems!!!! nobody really believes this would be a fair and proper outcome.

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gabe
on October 17, 2016 at 17:22:37 pm

“You have 24 days to make every dream you ever dreamed for your children, for your family for your country to come true.” One guess: Who said it, Willy Wonka or Donald Trump?

That’s very clever!

I agree, government has become more active than it was at the nation’s founding. I suspect we’d agree that this has generated both costs and benefits. We might disagree about whether costs have exceeded benefits.

The results, including Roe v. Wade and, more recently, U.S. v. Windsor and Obergefell v. Hodges, have effectively disenfranchised religious conservatives who would otherwise have been able to make arguments for their political views in the political arena, a place where they could have won or lost fair and square. Losing there would still have bruised them, to be sure, but it would not have deformed politics nearly as much as the wholesale attempt to delegitimize their views.

How should the Supreme Ct have ruled on Brown v. Bd of Education? Should the court have said, “Gosh, this is a controversial issue. We’re being asked to upset longstanding social conventions, and we’d be loath to intrude upon the religious liberties of Klansmen. So why not leave this matter to the political sphere….”?

How 'bout property rights--should we ask courts to defend those? Or should we tell property owners that they are free to defend their rights by making appeals in the political arena, a place where they can win or lose fair and square?

I’m skeptical of the claim that abortion would not have become such a divisive issue if only the court had refrained from ruling in Roe v. Wade. That’s akin to blaming the Dred Scott decision for making slavery a divisive issue. I suspect the divisiveness was baked in, regardless.

I have a strong suspicion that where a person stands on these issues depends on where they sit. I regret the stigmatizing language of the Obergefell decision, but I still hold the view that government discrimination against same-sex couples violates the Equal Protection clause; states should be free to refrain from recognizing marriages, but they should not be free to recognize them in a discriminatory manner.

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nobody.really
on October 17, 2016 at 18:19:36 pm

Then the electoral process would have to be changed by constitutional amendment so all states are affected at the same time, yes?

Who is responsible for initiating amendments, and what would be their powerful incentive for doing so in this case?

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Scott Amorian
on October 17, 2016 at 18:48:05 pm

Another *seemingly* reasonable series of comments, YET:

There is a substantial (and substantive) difference between equal access to education, a right to be enjoyed by all and typically, circa 1954, enjoyed by many AND abortion, a newly divined right in which the a right previously enjoyed by all was negated, i.e., the right to be free from harm enjoyed by an unborn human child.
I, for one,have been unable to find the "right to kill babies" in the constitution. Then again, I suspect that nobody really believes that was not a tradition worthy of continued protection - akin to segregated schools, no doubt.

Interesting, however, that what we observe here, is another indication that much of Progressive argument is spurious. One may be as skeptical as one concerning the "divisiveness" of a politically decided abortion determination, but it should be apparent that the citizenry does not react well to "mandates" from on high whether it be Roe or Obergefell or the newly mandated *pronouns* Notice also the assertion that SSM is the equivalent of traditional marriage as if that did not even warrant commentary. Rather, it is to be not unreasonably argued that the citizenry, having had an opportunity to participate in a decision, would have a greater likelihood of abiding by it and, albeit reluctantly, accepting the results. Of course, as Weiner points out, given the unlikelihood of a unanimous outcome in all 50 states, those upset with a local decision, would have an opportunity to vote with their feet. This has also been denied them and it is again denied as a possibility by, well, nobody.really.

Lastly, and to return to previous posts on "deference / activism / engagement, etc etc" it is interesting to note that these cases listed by nobody provide proof that no one theory of judicial construction / interpretation / posturing, etc can cover all situations. In the one case, Brown, the court should have been *engaged*; not so much in Obergefell and clearly the Roberts court should not have been so deferential in O-Care.

Earlier this month, one of my favorite commenters, Kevin Hardwick indicated that he studies "constitutional change over time" Is this not what we are actually struggling with in all these discussions. what are the implications of a) judicially mandated change as opposed to b) politically determined change.
What do each of these approaches portend for an active / informed citizenry? for the rate of change both culturally and constitutionally?

I suspect that until we are able to properly answer those questions we will continue to flail about with all manner of *clever* theories and prescriptions. It will not get better after November because neither candidate possesses even a modicum of understanding of these questions or similar issues. The Disco Don, from ignorance, assumes massive intrusive power in the Executive and the Fat Lady, from arrogance and self-righteous zealotry wishes to further extend the intrusive arms of the government into every corner of our lives IN SPITE of Constitutional prohibitions to the contrary - and all done under the banner of protecting our rights and equality.
Here we go again, taking the wrong spur of the rail line as an unseen hand switches the track!

Yikes, this promises to be interesting.

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gabe
on October 17, 2016 at 19:06:18 pm

If you wanted to change the electorial college system then yes a constitutional amendment would be required. But you havent said what you would even change it to. The states could propose it through an article V convention process or the legislature could do so.

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Devin Watkins
on October 17, 2016 at 19:13:18 pm

I have an article that I submitted prior to your comments, that should be published soon hopefully, that goes along the same lines. We need a judiciary that does everything it can to properly interpret the Constitution. Our current Court gets it wrong sometimes, but that is no reason to abandon the judicial duty to interpret the constitution and just defer to the legislature.

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Devin Watkins
on October 17, 2016 at 19:16:55 pm

Scott / Devin:

If I understood Scott's question, it had to do with the electoral college compact currently being considered by a number of states. So:

As i understabnd it, the Compact would go into effect when a number (I do not recall what the number is) of states agree to it. Then all compacting States Electors are bound to vote for the candidate with the most votes nationally.

Devin:
1) Am I correct that with respect to the respective States Electors, the States are actually free to do this albeit only with their own States electors.
2) would not such a compact be in violation of Art 1, Sec 10, Cl 3 of the constitution unless, of course, Congress were to accede to it? (I know there have been some MultiState compacts but the congress was involved, yes???
3) Absent congressional consent, then an amendment would be necessary.

Gee, I wonder how a Clinton Supreme court would vote on this little doozey of a scheme?

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gabe
on October 17, 2016 at 19:19:05 pm

Give me a heads up on where I can read it. Look forward to it.

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gabe
on October 17, 2016 at 19:51:04 pm

I've looked at the Article V convention. It acts like a threat to keep the federal government in line, but it isn't practical. The partisans in the state legislatures will not commit a politically accusatory act against their partisan allies in the national congress. Any potential amendment that might actually be proposed by the states would be taken up by the US congress so they can get credit and avoid egg on the face.

The college needs to be separated from popular opinion. It needs to select a candidate on objective grounds instead. This can be done by requiring a secret ballot by the electors and by making attempts to sway electors using bribery and threats of force serious crimes; that would include state legislation to require electors to vote a certain way. By secret ballot I mean that absolutely no one should know how any elector voted, and for any elector to publicize how they voted would be a crime also. An auditor of some sort would be needed, along with an auditing process that preserved the anonymity of the electors.

A full review of the candidates resumes and character would be the selection criteria in place of the almost psychedelic quality of partisan bullshit we are being force-fed today.

Just as we trust our trial juries of informed jurors making conscientious decisions behind closed doors, and just as our public voting is done through secret ballot, so would the electoral college vote in secret.

That would be more in line with what the Framers were intending to accomplish in establishing the electoral college.

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Scott Amorian
on October 17, 2016 at 20:37:39 pm

Interesting:

A couple of things:

1) Who (s)elects the Electors under this scheme. The Framers considered and approved of some measure of *responsiveness to the peoples vote, albeit indirectly.

2) "A full review of the candidates resumes and character would be the selection criteria in place of the almost psychedelic quality of partisan bullshit we are being force-fed today.

Just as we trust our trial juries of informed jurors making conscientious decisions behind closed doors, and just as our public voting is done through secret ballot, so would the electoral college vote in secret. "

Yep, it is almost psychedelic, but, as I recall, a heck of a lot less fun!

The issue of resumes and character is a unique approach but it is not similar to the consideration(s) to be made by jurors. As any good litigator will tell you, there is (or ought to be presented) a "theory of the crime / offense" supported by a bevy of provable facts that the jury must consider. Resumes and *character* are not susceptible to that level of "proof."

In fact, a not unreasonable argument may be advanced that THE problem with current campaigning is precisely that it is a never ending examination of "resumes and character" - all open to the most excruciating examination(s) and the preponderant *presentment* is negative.

were we ever to elect candidates based upon a "theory of the case", i.e., what is the role of government, its limits, what is the nature of the governing mechanism we were bequeathed, what is it now AND the candidates presented facts / summaries and prescriptions regarding the questions, then maybe, just maybe, we would have something there. I suspect were that the case, we would need not worry about electors.

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gabe
on October 17, 2016 at 20:39:10 pm

There is a substantial (and substantive) difference between equal access to education, a right to be enjoyed by all and typically, circa 1954, enjoyed by many AND abortion, a newly divined right in which the a right previously enjoyed by all was negated, i.e., the right to be free from harm enjoyed by an unborn human child.

I, for one,have been unable to find the “right to kill babies” in the constitution.

Look right next to the federal right to an education.

Alternatively, look at the 5th Amendment which defends a person’s right to life, LIBERTY, and property. This right expresses the English common law principle (incorporated into the Constitution, and reflected in the current Restatement of Torts) that people do not have a general duty to aid another—that is, we are at LIBERTY to choose whether and when to extend aid, and to set the terms for doing so.

I’m surprised to learn your views on this matter. Libertarians would generally dismiss the idea that people have affirmative rights such as the right to demand that government tax the public so as to provide educational services. To the contrary, libertarians generally embrace the idea that people have negative rights, such as the right to be left alone to do with their bodies as they please.

But I’m intrigued to read that you do not recognize a person’s right to control the use of his or her own body. Every day people die for lack of a kidney. I’ll let them know that you have no objection to having your body commandeered for the benefit of others; they’ll be most grateful for your donation.

[I]t should be apparent that the citizenry does not react well to “mandates” from on high…. [I]t is to be not unreasonably argued that the citizenry, having had an opportunity to participate in a decision, would have a greater likelihood of abiding by it and, albeit reluctantly, accepting the results. Of course, as Weiner points out, given the unlikelihood of a unanimous outcome in all 50 states, those upset with a local decision, would have an opportunity to vote with their feet. This has also been denied them….

Just to be clear: You’re saying that the Supreme Court should not have interfered with segregated schooling? That black families that did not like segregated schools should have quit whining and simply moved to some other jurisdiction? That the Supreme Court needlessly deprived segregationists from being able to enjoy their choice? And that the black people, having had an opportunity to participate in a decision about the policy regarding segregation, would have a greater likelihood of abiding by it and, albeit reluctantly, accepting the results?

[W]hat we observe here, is another indication that much of Progressive argument is spurious.

What we observe is that much argument of any flavor is spurious. And thanks for the illustration.

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nobody.really
on October 17, 2016 at 20:50:09 pm

Question 1: "Am I correct that with respect to the respective States Electors, the States are actually free to do this albeit only with their own States electors."
States are free to select the method of choosing their state electors.

2) would not such a compact be in violation of Art 1, Sec 10, Cl 3 of the constitution unless, of course, Congress were to accede to it? (I know there have been some MultiState compacts but the congress was involved, yes???

Its possible such a compact would violate that clause. Current precedent makes it almost impossible to violate that clause, but this one would probably pass over that line. But what would be the effect by the Court? At best they would remove the binding effect of such an agreement, but even that would likely lead to the same outcome with all the said states continuing to select electors the same way (even if they were not required to do so).

3) Absent congressional consent, then an amendment would be necessary.

Depends on the remedy that the Court decided on. We never had a compact violate the clause like this one would. But yes, its possible it would require a constitutional amendment.

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Devin Watkins
on October 17, 2016 at 20:52:04 pm

You would still have people running for elector saying "vote for me and I will vote for X" but then you will just have some electors lie and vote for someone else and you wont know who the liars were. That just seems like a bad system that is going to create a lot of corruption.

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Devin Watkins
on October 17, 2016 at 21:50:02 pm

But long before a constitutional amendment, you would just get consent from congress (far easier to do).

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Devin Watkins
on October 17, 2016 at 22:07:47 pm

I'm tired of pondering who will guard the guards.

Let's ponder who will elect the electors!

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nobody.really
on October 18, 2016 at 12:10:51 pm

Nobody:

cut the crap - the usual Proggie attempts to distort what one has argued.

clearly, I stated that Brown should have been decided as it was (albeit it for some other reasons AND not based upon bogus "social science" pyschobabble).
Your characterization of my clearly stated position on Brown is typical of the leftist legerdemain that has, regrettably, proved all too successful during the past 50 years or so. It is decietful and i find it objectionable.

Next: You continue to assume that I am a Libertarian and consequently impute to me motives / ideas that ONLY you believe are in fact properly attributable to libertarians. for the gazillionth time - I am not now, nor have I ever been, a member of the Libertarian Party (How is that Mr McCarthy/)

To deny that there is a substantive difference between access to education and the killing of an unborn human being is sheer and willful ignorance. If it be bad to deny access to education, is it not bad to deny access to the life that would then be guaranteed access to education.

And, BTW, "privacy" does not (and ought not) trump all other and all others rights. Just as religious exercise is not absolute (even you argue this), neither is "privacy.

So continue to "spur" folks on. Nobody really is willing to accept this line of argument anymore!

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gabe
on October 18, 2016 at 14:43:31 pm

The main problem as I see it, and as these comments illustrate, is that the American people have gone so "all in" for popular democracy that we no longer recognize its failings. We no longer recognize republican government when we see it. We no longer understand the virtues of republican government and why it's better than popular government. Not even the conservatives among us. Heck, the party that calls itself "Republican" is just as democratic as the Democratic party, only with a different popular platform. That's why I look to other nations to continue the American experiment. It's in the process of failing here.

Americans have abandoned their republican Constitution, and most aren't even aware of the fact. Most Americans think America is about popular democracy. It is really about popular representation and conscientious decision making. We don't exercise government that way, so we have the very predictable problems of popular democracy.

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Scott Amorian

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.