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Monday, February 15 - 8:48pmSanction this postReply
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This conflict we see brewing over the next Supreme Court nomination that came up with the death of Supreme Court Justice Antonin Scalia shows that the key issue is not well understood.  At least that is the impression given when watching the news and reading the opinion pieces. The talk is always about Republicans versus Democrats or about liberal or Conservative. And about does the president have a right to nominate and does the Senate have a right to reject a nomination.

 

There is a critical dimension that is far more important. It is the issue of how the Constitution should be interpreted. This should be a no-brainer. The constitution is a document whose content is, quite simply, text.  How should that text be understood?  It should be understood as simple English where there is no question as to what the sentences mean.  When there is a question as to what any given set of words mean, the question becomes, "What did those who wrote the text, and those who ratified that text understand it to mean?"

 

Now here is the thing... anyone who disagrees with this simple understanding will be found to be arguing that they get to have some other kind of interpretation and I assure you, they will come up rationales right and left (no pun intended).  But no matter what they say, there is one thing that we know: They are legislating via rationalized interpretations. Some of them might be doing so to see Conservative ideology become the law of the land, or they may be doing so to see progressive ideology become the law of the land, or they might be doing so to implement some pragmatic idea of the good of society. There is no end of the rationales can be imagined. 

 

So, forget about all this talk of "balance" on the court, or talk about conservatives versus liberals versus moderates or centrists.  There are just those who will ‘interpret’ to achieve their ideas and their ends and to further their ideologies and their desires versus those who seek the meaning intended by the authors and ratifiers. That's all.

 

The constitution mustn't be seen as the rope in a tug of war between the left and the right. It must be seen as the one and only limitation on the power of government (this side of an armed revolt).  Without a constitution we don't have a limited government.  Since the purpose for limiting government was to protect individual liberty, the loss of the constitution as a strictly interpreted limit would mean the loss of the sole protector of liberty (apart from the use of arms and a bloody revolt).

 

What those who argue against the originalist method of understanding the constitution are doing is destroying the protection of liberty to further some end of theirs. That isn't balance. That isn't right versus left.  It is protected liberty versus an open path to someone's flavor of totalitarianism.

 

In a truly rational world there should never have been even a single justice anywhere in the history of the court that didn't see things in exactly this way.  Since the late 1800's, the progressives have been the authors of this false view of the constitution, and they have promoted this nonsense idea of 'balance' on the court. They don’t want ‘balance.’ They want ever more flexibility to pretend that the constitution means what they want it to mean. (And on the religious right, they want to interpret the constitution to force biblical scripture on the public.)

 

Sadly, the progressives know how massively important this issue is.  So, hold on to your hat.  The looming political battle will be as fierce as anything we've seen before.  If progressives can succeed in creating a court where the majority are not bound by any idea of originalism, they can proceed to weaken the rule of law by making the constitution a thing to be interpreted any which way. And that will let them pursue the complete transformation of the country to one where no item is too small to escape control by elites in Washington.  If the Senate doesn't hold out for the next president before moving ahead with the appointment, and if the next president isn't someone who nominates an Originalist, and if the next Senate doesn't refuse to confirm anyone who isn't an Originalist, then we all need to find our Galt's Gulch solution sooner than we might have planned, because the speed at which liberty will disappear will have increased exponentially.

 

Again, it is a very simple thing. Progressives insist on control.  That makes individual liberty their opposition that they must overcome. That liberty is protected, to the degree that it still exists, by the rule of law.  The rule of law requires that the constitution stand as a dependable foundation. And that depends upon text staying true to what those who wrote and ratified that text understood it to mean.



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