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Winning the Court, Losing the Constitution

When Mitt Romney announced his openness to considering a Supreme Court nominee last Tuesday, he all but ensured that Republicans will be able to confirm a conservative replacement (now announced to be Amy Coney Barrett) for Ruth Bader Ginsburg, one of the Court’s most liberal justices. His statement, however, also did something that we aren’t accustomed to seeing in politicians’ press releases: intentionally or not, it hinted at profundity. In it, Romney declared that his decision was based not on a general concept of “fairness,” which so often lapses into subjective justifications for self-interest, but on “the immutable fairness of following the law” which, in the present instance, is “the constitution and precedent.” This is a worthwhile sentiment, and the circumstances surrounding the vacancy demonstrate just how out of fashion it is.

Sources of Legitimacy

Politics is about power: about who should have it and how it should be used. But, in any free government, it can’t be about the unlimited accumulation and exercise of power. Given the profound differences that exist in Americans’ conception of the common good and political morality, the classic question is what shared limiting principle exists to keep political actors within the realm of fairness and decency in their pursuit of and exercise of political power?

There is no shortage of answers to this question. In the current situation, Democrats have quite a few on the tips of their tongues: the Senate must do the same thing it did when a Democrat occupied the White House; it must allow the people to decide the question; it must follow the “dying wish” of the late justice. But as these examples show, such appeals to generic “principle” too often amount to ad hoc justifications for the outcomes that one side wants. The Court has given the Left its most impressive victories, and losing that incredible power to reshape society is such an unthinkable prospect that they were forced—in 2016 and 2020—to appeal to any principle they could think of to prevent it. As Romney further remarked, the left has “gotten very used to the idea of having a liberal court, but that’s not written in the stars.”

It’s not written in the Constitution either. The Constitution was long recognized as containing the consensus rules of the game—the standard to which all actors can appeal for legitimacy. It does not tell us what substantive goals to pursue, or how leaders should use their authority, but it sets the outer boundaries of that authority and specifies those actions that are not simply “wrong” or “unfair” but illegitimate.

It could serve this purpose because it was created by the universal consent of the states; its amendments were approved by overwhelming majorities; and the American people have lived (mostly) peaceably under its rules for nearly two and a half centuries. Its pronouncements represent not the passing preferences of this or that party, but the standards accepted by generations. While people have long disagreed with one another about political morality, and often disagreed about the meaning of the constitution, they have generally agreed with the principle that the constitution is the arbiter of basic legitimacy: The partisan struggle for political power is legitimate when it stays within the bounds established by the constitution; it is illegitimate when it transgresses them.

This standard has clear guidance for the current kerfuffle. America’s constitutional structure abhors concentrated power, which is liable to misuse and serves as an incentive for political actors to grasp it by any means necessary. As such, the Constitution divides the authority to appoint justices by requiring the “consent” of the Senate. When the Senate, however composed, does not approve of a president’s nominee, it has every right to refuse to give its consent. So in 2016, when President Obama nominated Merrick Garland to the Supreme Court, Mitch McConnell and Senate Republicans had no reason to apologize for saying no.

By refusing to entertain the Garland nomination with hearings, McConnell was undoubtedly playing political hardball. But the Senate majority, which can make rules for the body, and schedule hearings and votes as it sees fit, unquestionably has the constitutional authority to do so. Indeed, the majority’s actions do not even push the boundaries of its constitutional authority. The prospect that the Senate will refuse a president’s nominee is, presumably, the only reason it has the power to begin with.

It is a safe axiom of republican government that when a significant portion of society would rather destroy the regime than live with policy outcomes it disagrees with, the hope for restoration is slim.

One is free to disagree with and protest the Senate’s decision, free to think that Garland would have been a worthy justice, free to think that it is more fair and civil to give every president’s nominee an open-minded hearing. Likewise, one is free to disagree with the choice to consider Trump’s nominee, free to believe that it would be fairer to treat both nominees the same way, free to believe that the election should decide the issue. And importantly, one is free to put these moral questions to the voters. But such arguments should be distinguished from the question of legitimacy.

That distinction, however, seems to be fading in the public mind. Increasingly, personal and partisan views of justice or fairness are expected to inform not just our political goals, but our concept of legitimate political activity. Even more dangerously, the idea of contorting the constitutional order to match these superior moral standards is becoming more and more mainstream.

The Left’s Vision for the Future

Democrats and the media have blasted the Senate majority’s decision not just as poor, or imprudent, or likely to set a bad precedent, but as fundamentally illegitimate. Reaching beyond constitutional authority to their own moral standards, it just doesn’t seem fair that their president was unable to fill a vacancy before an election and a Republican one can. And since they see this act as fundamentally illegitimate, they can, in retaliation, declare that “nothing is off the table.”

Should they win back the Senate and presidency, they threaten to answer McConnell’s perceived hypocrisy with retaliation that explicitly aims to transform long-established institutions so as to better attain their partisan goals. Their threats, like McConnell’s actions, are all technically within the bounds of constitutional authority and therefore would be legitimate. But, unlike McConnell’s actions, these plans would go beyond the standard political process to actively reshape institutional forms for explicitly partisan purposes. In doing so, they would likely do irreparable damage to the idea of the constitution and its structures as universally accepted rules of the game.

Court packing would turn the Supreme Court into the ball in a game of partisan ping-pong, crushing any hope that it might regain its generally accepted legitimacy as an honest interpreter of the law. Adding justices for explicitly partisan ends, moreover, would be truly unprecedented. When FDR made his ill-fated attempt, he at least pretended that he had a neutral, objective goal in mind (the old guys just needed some young blood to keep them spry).

Abolishing the filibuster has nothing to do with the judicial vacancy (indeed, it was the abolition of the judicial-confirmation filibuster that allowed McConnell and company to confirm all of Trump’s justices and judges in the first place). It would set us up for a future of unchecked majorities from one side pulling the country headlong in the direction dictated by its increasingly radical base, at least until the other party takes over and does the same thing. Some activists have even suggested that impeachment—the constitutional process we were (correctly) told earlier this year was a weighty, solemn duty of Congress—should now be openly used as a simple, procedural stall tactic.

The coup de grâce in this threatened revolution would be the addition of new states to the Union for the explicit goal of gaining Democratic senators and electoral votes. Such an action, again with such an openly admitted purpose, would be the ultimate subordination of governance to personal and partisan power. The last two states admitted—Alaska and Hawaii—were done so on a bipartisan basis. Even in the wildly divided antebellum period, states were typically added as part of a grand compromise. To intentionally reshape the Union merely to manipulate the Senate and Electoral College would be such a radical act that many might start wondering why, if states can be added for partisan reasons, others can’t remove themselves?

But the legitimacy and longevity of our political institutions are less important than the ideological goals of the left. If the institutions as they are do not provide the desired outcomes, they might as well be destroyed. In more normal times, one might think these suggestions are merely empty threats, but as politicians cheer on movements physically destroying American cities, why would we expect moderation when it comes to our already embattled institutions? It seems entirely possible that the intentional undermining of our political institutions will now be a regular part of political discourse and a threat that hangs over every election. It is a safe axiom of republican government that when a significant portion of society would rather destroy the regime than live with policy outcomes it disagrees with, the hope for restoration is slim.

How We Got Here

All of this bitterness surrounding Supreme Court vacancies, fittingly enough, comes from the same desire to abandon the standards established by the constitution in favor of higher, more generic ones. The Supreme Court, having become a full-time constitutional revision council, is the most powerful branch when it comes to shaping the long-term trajectory of American government and society. With the snap of their fingers, five justices can undercut every governing institution in the country by creating new rights never mentioned in the constitution and never before affirmed by the people’s representatives or approved by the people through an amendment ratification. It therefore represents the ultimate power to break free of the standards the constitution establishes.

This power to elevate external standards of legitimacy above the clear, accepted ones of the constitution is perfectly encapsulated by the doctrine of substantive due process, which Justice Thomas has described as “a secret repository of substantive guarantees against unfairness.” Just like those on the left who argue that McConnell’s actions just seem so unfair that they must be illegitimate, so substantive due process presents justices with the power to declare that certain laws just seem so unfair that they must be constitutionally illegitimate.

So we return to a familiar theme: Our constitutional structure abhors concentrated power. Given the incredible power that has come to be concentrated in the Court to actively reshape constitutional standards without the troublesome task of building a societal consensus, why should we wonder that party leaders on all sides will do absolutely everything in their power to win a fight over the Court? As long as the Court has the power to act as a constitutional revision council, the temptation to tear the country apart over its vacancies will persist.

Is there any hope for reviving in the public mind what Romney referred to as the “immutable fairness of following the law”? Sadly, the prospects look bleak. Even some conservative intellectuals have begun to attack the notion of accepting the clear meaning of the constitution as empty, legalistic proceduralism, opting instead for their own conception of the “common good.” And it takes a hefty dose of naïveté to believe that Trump and the right-wing populists—who earlier this year declared impeachment proceedings to be not simply wrong, but “illegitimate”—have much respect for the constitution when it doesn’t further their goals.

With the Barrett nomination, conservatives may win the Court—a long-sought-after and satisfying victory. But the controversy surrounding it reinforces the reality that, unless something can be done to change the perception of much of the country, we may still lose the Constitution.

Reader Discussion

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on September 28, 2020 at 07:19:47 am

"With the snap of their fingers, five justices can undercut every governing institution in the country by creating new rights never mentioned in the constitution and never before affirmed by the people’s representatives or approved by the people through an amendment ratification."

Government creates no rights. All rights are with the individual and precede government. The conveniently forgotten 9th affirms that fact. Government may create political privileges related to its functions (e.g. voting rights and due process), but the politcal process does not sign-off on inherent natural rights...

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OH Anarcho-Capitalist
on September 28, 2020 at 09:56:05 am

Contrary to Grove's assertion, the failure to provide a hearing to Merrick Garland in 2016 did damage both the institutions of the Court and the Congress. While the Constitution did allow him to do so, McConnell's actions were driven solely by political purpose and defied both precedent and Constitutional intent. If he wished to uphold both, McConnell would have permitted a fair and full hearing and then, if they so decided, the Republican majority could have voted to deny the nomination. As things happened, the decision to reject Garland was made by McConnell alone, not the full Senate. Doing so, would have conformed with precedent and would also have precluded the destructive arguments that are now occurring regarding the Barrett nomination.

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F. M. Walsh
on October 04, 2020 at 15:09:11 pm

I agree. McConnell gained nothing by denying Garland a hearing, while losing the political high ground.

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Marty McBee
on September 28, 2020 at 11:18:09 am

Grove had a pretty good run through the low hurdles of elementary civics and basic constitutionalism, but he stumbled and fell flat on his political-awareness face at the high hurdles, the "trash Trump" stretch of the race, "trash Trump" being de rigueur in any essay from an L&L staffer or analyst. The more facts and reason and the less bias and emotion the better one runs intellectual high hurdles.

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paladin
on September 28, 2020 at 11:39:27 am

“The partisan struggle for political power is legitimate when it stays within the bounds established by the constitution; it is illegitimate when it transgresses them.”

True. This does not change the fact that the illegitimate partisan struggle for political power that has leaped far beyond the bounds established by The Constitution, is the denial that every son or daughter of a human person can only be a human person, and that only human persons can exist in relationship as husband and wife.

It is mind boggling that Justice Blackmun, during the oral arguments regarding Roe v. Wade, stated that the definition of person is “naturalized citizen”, before back tracking, without ever stating the correct definition, “a human individual”. We can know through both Faith and reason, that even if a son or daughter of a human person is not a naturalized citizen, they still remain in essence, a son or daughter, endowed with their inherent unalienable Right to Life, Liberty, and The Pursuit of Happiness. No one challenged Judge Blackmun’s restrictive definition, clearly leading to a substantive and thus procedural due process error, or mentioned the fact that this same Substantive error was previously used to deprive another group of beloved sons or daughters their inherent unalienable Right to Liberty.

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Nancy
on September 28, 2020 at 11:39:30 am

Court packing would turn the Supreme Court into the ball in a game of partisan ping-pong, crushing any hope that it might regain its generally accepted legitimacy as an honest interpreter of the law. Adding justices for explicitly partisan ends, moreover, would be truly unprecedented. When FDR made his ill-fated attempt, he at least pretended that he had a neutral, objective goal in mind (the old guys just needed some young blood to keep them spry).

Walsh pretty thoroughly rebuts this above. The damage to the Court's objectivity was done when the Republican Senate decided to block any consideration of Obama's nominee--whoever he or she might be--for purely partisan reasons. Once the horse is out of the barn, it's a little late to close the gate.

Which doesn't mean we shouldn't try. Thus, the Senate could elect to NOT take up Trump's nominee, thereby remedying the damage they had done, forestalling the need for court-packing. But alas, they won't--and here we are.

Again, what we need is not exhortations for Democrats to exercise a kind of restraint that Republicans honor only in the breach. We need structural remedies.

First, let's get a constitutional amendment fixing the size of the Court, and set the terms of federal judges on a long, but fixed, basis. Thus, courts would become like independent agencies, with each president able to replace a fixed, finite number of members during any term. (We'd also need to have some policy for replacing judges that die/quit/get impeached, too; talk amongst yourselves....) In this manner, we could reduce the contentiousness around this nomination process.

But what about a Senate that refuses to confirm a President's nominees? Maybe we add to the Constitutional amendment some additional language: Create some minimum criteria for nomination, the President must nominate at least three (?) qualified candidates, and if the Senate fails to complete hearings within two months of the nominations, or to approve one of the candidates within four months (?) of the hearings, then the President's first choice becomes the next judge.

We can fight over the details. But at least we'd be fighting over something viable, rather than fighting over some "spirit of compromise" that died years ago.

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nobody.really
on September 28, 2020 at 12:13:29 pm

As for who or what has caused damage to the Court, it is / was THE Court itself that has damaged its reputation and standing. Had the court not arrogated to itself the Legislative Power vested in a "Congress of the United States", and had it not also alternately encroached upon and / or expanded the power of the President's Article II powers, it would not find itself such a contentious, and dare I say, presumptuous entity / institution.
Accordingly, with it's own unique view of its policy expertise and power, it has radically expanded the powers of the central government (see any and ALL commerce clause cases) thereby allowing the government entry into what were theretofore matters of either State or private concern.
With such a broad quiver / portfolio, is it unexpected that the Court itself has come to be questioned - Never mind some of its dubious constitutional "constructions" - the Courts ever increasing appetite for power / influence is at root THE cause for its current disrepute and simultaneously its outsized importance.

Start by overturning Wickard v Filburn. You may find that eventually the Court will shrink back in import / significance.

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g
on September 28, 2020 at 23:21:27 pm

I think that your initial premise is true: that a politicized Supreme Court is a circumstance of the Court's own making. I believe even Justice Ginsburg thought that the holding of Roe v. Wade usurped the more robust and proper discourses by which functioning societies address contentious issues. The reason that Supreme Court nominations are such contentious issues is that the Court has not had the discipline necessary over its history to confine itself to its judicial role. This should not however be surprising.

There is something discordant in the adulatory claim that Justice Ginsburg "made people's lives better." Despite the sentimental appeal of such a notion, it is not the role of a Court, any court, to "make people's lives better," unless that is a natural consequence of properly interpreting the law. If a person's ambition in life is to make people's lives better, or help those in need, that person should become a tow-truck driver, dental hygienist, or volunteer at an elementary school or assisted living facility. The role of a judge has more in common with that of a repo man than of a nurse or teacher. And this is how it should be. When Justices start thinking of themselves as humanitarian celebrities and fretting about legacies, they start down the road to kritarchy.

A functioning republic with democratic institutions should have social burdens imposed only by those branches most accountable to the public. In our republic this is the House of Representatives, and this explains why bills for the raising of revenue must arise in that chamber and no where else. When courts take it upon themselves to impose burdens (the most egregious case was probably Missouri v. Jenkins)the people become detached from their government, government becomes more corrupt, less efficient, and less capable, and the status of citizen is degraded. Judge Clark, the District Judge responsible for Jenkins was a failure. Because he damaged multiple institutions at a cost of billions of dollars, he was an expensive failure as well.

To the extent that the U.S. Supreme Court undertakes to impose burdens that should be the obligation of the elected representatives, or usurp the resolution of contentious issues from more capable and appropriate venues of discourse, the Court behaves dishonorably. When its members mistake legal training for a qualification to tell a nation of 340 million people what should be important to its citizens, it shows itself to be not only unprincipled, but pretentious and arrogant as well. But again, this should not be a surprise. This accretion of political dross is an incremental process, the avoidance of which requires constant vigilance and correction. It requires the legislature to step in when the Court resorts to laughable rationales, such as in Bostock, that nearly everyone realizes are a pretense to impose policies that Congress does not have the will to address. Once this becomes a habit, as you correctly point out in commerce clause jurisprudence, it is difficult to rein in. New dogmas lurk in penumbras, fashions are recognized as Constitutional pillars, accidents become precedents and sentiments are mistaken for principles.

The current state of affairs is a long time in the making. It is not the contrivance of Mitch McConnell, Donald Trump, or John Roberts. It is the result of creeping but unchecked opportunism and hubris on the part of the Court, fecklessness and an unbecoming willingness on the part of Congress to let the Court do its risky political work, and a lamentable ignorance on the part of the people regarding the proper role for the Court. In order to halt this decay, which is in no one's interest and will not be fixed by any of the fevered schemes being proposed as responses, the Court must re-tool the political question doctrine and actually stick with it. It also needs a "cultural question doctrine." Congress must be more jealous of its prerogatives and not allow the Court to substitute cultural preferences for legal principles.

And maybe we should just admit that the people who wrote and ratified the Constitution were better at what they did than our modern elites are at what they do.

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z9z99
on September 28, 2020 at 12:22:40 pm

Dr. Grove does an excellent job of distinguishing constitutionally legitimate from illegitimate political action and of highlighting the parlous course the left is now on. If we go down that road, it will be the end of the rule of law.

I would take exception, however, with the last section of his essay. True, some of the "rights" the Court has "found" are nowhere to be found "in" the Constitution, but others are, whether through substantive due process or through the Privileges or Immunities Clause in conjunction with the Ninth Amendment, as I have argued in detail in several places. And none of that, for the most part, is a matter of importing notions of "fairness" or "common good conservatism" but rather of simply doing the originalist casuistry that is required for competent judging. Apart from that qualification, however, this is an excellent and much needed essay.

Roger Pilon
Cato Institute

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Roger Pilon
on September 28, 2020 at 13:35:42 pm

If "Moscow Mitch" McConnell acted within the bounds of legitimacy in denying even a hearing to Justice Garland and torching the filibuster in appointments, then packing the court with more judges is equally "legitimate". All of this goes against the basic idea - that the Senate should act as a deliberative body to assess the quality of a nominee, and by, in effect, having a 60-vote requirement (ending a filibuster) ensuring that judges enjoy broad support and hence legitimacy. Republicans, in a most unconservative way, have taken a flamethrower to these principles, and most neutral observers blame them far more than the Democrats. This is a dangerous game, as The Economist (no lefty journal at all) warns: https://www.economist.com/leaders/2020/09/26/how-to-make-american-judges-less-notorious You are at pains to defend McConnells actions, even as they take the country and its institutions down a dangerous path for liberty. Do you realize that failure to denounce McConnell for further undermining any respect for the appointment process makes you lose credibility as well?

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Siegfried Herzog
on September 28, 2020 at 17:47:38 pm

"Reaching beyond constitutional authority to their own moral standards, it just doesn’t seem fair that their president was unable to fill a vacancy before an election and a Republican one can. And since they see this act as fundamentally illegitimate, they can, in retaliation, declare that 'nothing is off the table.'"

Since Robert Bork's nomination in 1987, together with the ensuing crass and gross distortions of his record as a judge along with the contumely, slander and libel directed at his person (all reflecting "their own moral standards" which we are herein tacitly being told to respect and honor?) - since that point when has the left or the left/Dems ever demonstrated impartial political moral/ethical standards that the rest of us should rightfully respect and honor? When? Where? Likewise, since that point, when have they demonstrated that anything is "off the table" to begin with? When? Where?

"And it takes a hefty dose of naïveté to believe that Trump and the right-wing populists—who earlier this year declared impeachment proceedings to be not simply wrong, but “illegitimate”—have much respect for the constitution when it doesn’t further their goals."

Oh bother ... Firstly, this statement, this posit, has an inherent Kafkatrapping element. If one argues against this posit then one can be dismissed with the pejorative "right-wing populist" - and most will choose to avoid such a lowbrow label being hung around their neck. In essence, damned if you do and damned if you don't. In the main what is the author saying, that the Russia hoax and its kith and kin were legitimate? Christopher Steele and the like? Truly? Then say so explicitly. But the whole pejorative, reductive, categorical swipe is also nonsensical, it's a bland and oleaginous bit of political rhetoric, a sop apparently thrown to some vague, would-be idea of impartiality and more refined discernment on the part of the author. Disappointing. Other aspects of the piece are worthy enough, but this stuff is a fly in the ointment.

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Michael Bond
on September 28, 2020 at 18:43:25 pm

All of this moaning and bitching about the (inevitable) confirmation (before the 2020 election) of Judge Barrett as Justice Barrett is from Democrat and Never-Trump sore-losers (but I repeat myself.)

Let these sore losers pound sand, throw tantrums and threaten to intensify their unceasing campaigns to wreck the constitution. They have no constitutional principle, no precedent, and no normative moral standard to rely on in opposing Judge Barrett, whose nomination and its bold timing were strokes of Trumpian genius.

And the sore losers know it!

We saw after the 2016' election that Hell hath no fury like a Democrat out-smarted.
These furies will again sow the political winds with their vengeance, but the sore-losers may yet reap the political whirlwind.

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paladin
on September 29, 2020 at 11:27:37 am

I trust you will recall all these comments when the government votes to add seats to the Supreme Court.

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nobody.really
on September 28, 2020 at 20:44:01 pm

Typically, the latest brouhaha obfuscates the repression of the 1787 Constitution the generations have tolerated since 1788. Then, 9 states ratified it with the intention to negate its people’s integrity so as to favor the states’ “common good” rather than the people's integrity.

Professor Grove writes, “America’s [1787] constitutional structure abhors concentrated power, which is liable to misuse and serves as an incentive for political actors to grasp it by any means necessary.” The constitution guarantees the states a republican form of government, but in 1789, Congress appealed to a 99% Protestant free-citizenry to slight psychological independence for the rule of law. Consequently, some Supreme Court justices extoll “our democracy.”

The 1776 Declaration of Independence tacitly expresses a colonial war cry for liberation from England’s Parliamentary power, with its upper-house, 26-seats for the Church of England. The founders, representing “the good People” appealed to Nature’s God, the Creator, the Supreme Judge of the world, and Providence for reliable claim to independence from England’s partnership with the Church of England.

As the war progressed, France enjoined military dominance, winning strategy, and money in securing Cornwallis’s 1781 surrender at Yorktown, VA. Consequently the 13 free and independent states’ treaty with England was negotiated as the 1783 Treaty of Paris. The founders accepted political independence. However, the states were not psychologically free to accept “the Supreme Judge of the world” instead of a doctrinal God.

Twelve states sent delegates to the 1787 Constitutional Convention in Philadelphia. Thanks to the framers, nothing in the 1787 Constitution or its preamble lessens “the good People” or rebukes “the Supreme Judge of the world” or slights France. The 1787 Constitution seems humble, leaving the choice to be religious or not to the individual citizen. Personal prudence suggests fairness to both France and the Supreme Judge of the world, even if a citizen pursues comfort and hope in a personal God.

However, Congress had the hubris to author and ratify arbitrary power to usurp the-good-People’s responsibility. Unconstitutionally, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nothing authorizes Congress to author that statement. The preamble calls for human integrity rather than civil religion.

Every human has the individual power, energy, and authority (HIPEA) to perfect his or her unique person: develop integrity rather than nurture infidelity to self. President Trump has an uncanny ability to express fairness to individuals. For example, after Charlottesville, he spoke for the-good-People on both sides. Trump constantly expresses openness to Democrats and press-writers then leaves it to them to come to the table with open minds. His administrative team is wonderfully constitutional in their actions.

There’s no greater human offense than stoning; stonewalling is close kin. Congress stonewalled the-good-People in 1789 when Congresspersons re-established traditional, factional-American-Protestantism so as to claim divinity on par with the English Parliament. The Supreme Court codifies Congress’s offense, for example, in Greece v Galloway (2014), which rebukes me as “niggling”. An achievable better future is available to us.

When We the People of the United States stop tolerating Congress’s tyranny, the Supreme Court may reform on its own. The first step is to amend the First Amendment so as to encourage human integrity and civic spiritual privacy rather than civil religious enterprise.

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Phillip Beaver
on September 29, 2020 at 15:32:46 pm

My my, in such high level discussions of how to govern with a majority(ies) and minorities, for my own comfort (simplistically? simply? faithfully? in bad faith?) re-read Jefferson's First Inaugural, that works as a tutorial on the still fresh and evolving Constitutional governance:

"... During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things...."

https://avalon.law.yale.edu/19th_century/jefinau1.asp

The guy packs a lot into this short formulation - in a long address - summoning up remembrances of current and past histories, moral and political concepts, and a bit of metaphysical reflection - rather like dear Emily Dickinson in her own genre.

Take some comfort in this: our times are not 'the worst', and certainly not 'the only', such troubled times with Constitutional governance; and we at least have this practice of a couple hundred years, and can compare that to what Jefferson reminds: "throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, ..." .... and about which he warns: "we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions...".

Ain't this a watchword: acknowledge majority(ies), respect and protect minorities (which of course must mean those we don't agree with, and those we don't like), resist emotionally-infuriated intolerance (which requires intense self-critique as much, or more than, critique of others).

Let's do that.

Edward
rural Virginia, ya'll visit

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edward strickler

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