620,000 soldiers died in the American “Civil War”. For what did they die?
This is from Front Page, by Professor Walter Williams:
We call the war of 1861 the Civil War. But is that right? A civil war is a struggle between two or more entities trying to take over the central government. Confederate President Jefferson Davis no more sought to take over Washington, D.C., than George Washington sought to take over London in 1776. Both wars, those of 1776 and 1861, were wars of independence. Such a recognition does not require one to sanction the horrors of slavery.
We might ask, How much of the war was about slavery?
Was President Abraham Lincoln really for outlawing slavery? Let’s look at his words.
In an 1858 letter, Lincoln said, “I have declared a thousand times, and now repeat that, in my opinion neither the General Government, nor any other power outside of the slave states, can constitutionally or rightfully interfere with slaves or slavery where it already exists.”
In a Springfield, Illinois, speech, he explained: “My declarations upon this subject of Negro slavery may be misrepresented but cannot be misunderstood. I have said that I do not understand the Declaration (of Independence) to mean that all men were created equal in all respects.”
Debating Sen. Stephen Douglas, Lincoln said, “I am not, nor ever have been, in favor of making voters or jurors of Negroes nor of qualifying them to hold office nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality.”
What about Lincoln’s Emancipation Proclamation? Here are his words: “I view the matter (of slaves’ emancipation) as a practical war measure, to be decided upon according to the advantages or disadvantages it may offer to the suppression of the rebellion.” He also wrote: “I will also concede that emancipation would help us in Europe, and convince them that we are incited by something more than ambition.” When Lincoln first drafted the proclamation, war was going badly for the Union.
London and Paris were considering recognizing the Confederacy and assisting it in its war against the Union.
The Emancipation Proclamation was not a universal declaration. It specifically detailed where slaves were to be freed: only in those states “in rebellion against the United States.” Slaves remained slaves in states not in rebellion — such as Kentucky, Maryland, Delaware and Missouri. The hypocrisy of the Emancipation Proclamation came in for heavy criticism. Lincoln’s own secretary of state, William Seward, sarcastically said, “We show our sympathy with slavery by emancipating slaves where we cannot reach them and holding them in bondage where we can set them free.”
Lincoln did articulate a view of secession that would have been heartily endorsed by the Confederacy:
Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. … Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.
Lincoln expressed that view in an 1848 speech in the U.S. House of Representatives, supporting the war with Mexico and the secession of Texas.
So why was the American “Civil War” fought at all, if Lincoln was not against slavery in principle, and was for the right of states to secede from the Union?
Why didn’t Lincoln share the same feelings about Southern secession? Following the money might help with an answer. Throughout most of our nation’s history, the only sources of federal revenue were excise taxes and tariffs. During the 1850s, tariffs amounted to 90 percent of federal revenue. Southern ports paid 75 percent of tariffs in 1859. What “responsible” politician would let that much revenue go?
There can only be liberty under the rule of law.
When government is unconstrained by law, everyone is a potential victim of confiscation of property, imprisonment, or any other arbitrary action of the dictators.
We quote from an article at Townhall, by Kurt Schlichter.
Trigger warning: sarcasm coming up.
We conservatives have spent far too long playing by the old rules when liberals have completely changed the game. There was a time when laws meant what they said, when individual rights were important, when the government did not make it its business to oppress the executive’s ideological opponents, and when principles mattered. But that time has passed.
There’s a new set of rules, and while we don’t have control in Washington right now, we do have control most everywhere else – and someday a conservative will be president again. So there is no reason not to get going right now playing by the same rules the liberals do!
Of course, first we need to understand the basis of the new rules – it’s about having the moral courage to obtain and keep power. Until now, we conservatives have been guided by “principles” and “values” that only serve to distract us from what’s really important. Under the new rules, we will no longer let arbitrary ideas about how America should work get in the way of maximizing our ability to exercise our authority over others. After all, our supremacy is a moral imperative.
We will step beyond obsolete notions about process and embrace the primacy of results. We will stop treating “means” and “ends” like they are distinct and different – as 1984 (Read it – lots of great tactics, techniques and procedures!) teaches, “Power is not a means; it is an end.” Means and ends will flow together seamlessly, and we will stop getting hung-up on how we do things and focus on the real goal under the new rules – consolidating our power for the greater good.
Take the law. Under the old rules, judges were constrained by the plain meaning of the text, but that is far too restrictive. Words must mean what we need them to mean, no more and no less. We have to appoint judges who won’t prattle on about “judicial restraint” and “not legislating from the bench,” and who will reliably rule exactly how we need them to rule on each and every case. Let’s appoint judges, who understand that their purpose is to rationalize rulings that support our policy priorities, not seek some “legally correct” decision that might not. The law of the land is whatever we want it to be!
We should celebrate Judge Roberts’s recent Obamacare decision – it was liberating! He made it clear that when we want a different result, we don’t have to be deterred by the fact that the law means exactly the opposite. He affirmed that judges should interpret statutes – and the Constitution too – based upon a subjective desire for a particular outcome. Think of the possibilities for conservative progress if we aren’t hamstrung by some inconvenient text in a statute or the literal meaning of the words on some ancient parchment!
Where we have control of law enforcement, we have another great opportunity to play by the new rules. There are all sorts of liberal organizations out there shamelessly advocating policies and ideas we disapprove of. As we have learned, we can turn the power of the government upon them to root out this wrongdoing. We do not need to bother with accusing them of any kind of specific crime – why should we restrict our investigations to clear violations of laws? Instead, we can launch fishing expeditions to see what we can dig up – and even if there’s nothing, well, remember that the process is the punishment. Regardless, it’s important to establish that our political opponents will pay a price for presuming to oppose us.
And, naturally, when our allies are accused of breaking the law, we just ignore it. There needs to be two sets of laws – one for us, and one for everyone else. Otherwise, we might be constrained from doing what we please.
And there are other opportunities a huge government can provide us. Beyond audits and blocking vital certifications, the IRS has plenty of juicy information on every American – we can selectively release it to intimidate those who do not support us. And when we get a hold of everyone’s medical records under Obamacare – wow! What an opportunity!
Of course, there will not be any Obamacare. Oh, technically it might be hard to repeal (though getting rid of the filibuster entirely will make it much easier!), but who needs to repeal it when we can just choose not to enforce it? Our next president simply has to instruct the rest of the executive branch that they will not be taking any action with regard to implementing Obamacare, not collecting any of its taxes (they are taxes this week, right?) and not enforcing any of its mandates. Understand that we won’ be refusing to carry out the law – we’ll just be focusing on different executive priorities!
Perhaps the mainstream media will speak up, at least at first. But, you know, the New York Times, NBC and the rest really seem to have way too much power over our national conversation. It just isn’t fair how these big companies drown out the voices of regular people. Heck, these corporate entities are not even people and certainly should not have rights like people do to speak freely and so forth. They are more of a public utility, and frankly, they have not been serving the public good. That’s why we will use the FCC to take charge and oversee the shamefully deregulated mainstream media. …
A 40% surcharge on all Hollywood and Silicon Valley windfall profits would go a long way towards making things fairer – and this has nothing to do with the fact that most Hollywood and Silicon Valley political money goes to our opponents. But don’t worry about our conservative allies in those two fields – if they don’t pay we just won’t prosecute them! But if you’re liberal, watch out! …
This is only the beginning – the new rules liberate us from the constraints that for so long kept us from truly making conservative progress. All those “principles” and “ideals” about right and wrong and all that only served to take our eyes off of the real prize – our power, which we would only use for the common good.
Sure, we were all sad to see the old rules go, but gone they are. Our liberal friends made sure of that. So let’s make the best of it!
Justice Scalia, in his dissent from the Supreme Curt’s ruling that makes same-sex marriage legal throughout the United States (see our post immediately below, Who rules America?), so despised what five of his fellow justices ruled – because they had no right to – that he wrote this :
The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
His chief concern is that the Supreme Court was exceeding its powers and disastrously changing its proper function as a checking and balancing branch of government. Also, he declared it wrong to shut down the democratic process of debate within the states.
He firmly stated that the issue of same-sex marriage itself was not important to him.
Much as we like his dissenting opinion on the whole, on this point we disagree. While we take no position on any sexual preferences, practices, or proclivities (as long as there is no exploitation or corruption of children involved), we think that the issue of same-sex marriage is important. Its legalization throughout the United States has profound consequences.
Far from augmenting individual freedom, the ruling is radically destructive of it.
Here is an article that explains why that is the case, by Stella Morabito at The Federalist:
Same-sex marriage is a notion that contains within itself the seeds of its own destruction. I doubt many have thought this through, with the ironic exception of the elites who have been pushing the agenda the hardest.
Most people are weary of it all and going along to get along, especially since dissent has become such a socially expensive proposition, almost overnight. That in itself should deeply concern anyone who values freedom of expression.
Sure, true believers scattered across the land really do think the entire project ends with allowing same-sex couples to marry. Most persist in the blind faith that a federal ban on the standard definition of marriage will have no negative effect on family autonomy and privacy. That’s a pipe dream.
The same-sex marriage agenda is more like a magic bullet with a trajectory that will abolish civil marriage for everyone, and in doing so, will embed central planning into American life. And that, my friends, is the whole point of it. Along with Obamacare, net neutrality, and Common Core, genderless marriage is a blueprint for regulating life, particularly family life.
The Rainbow’s Arc
Unintended consequences usually come about when we are ignorant or maybe lazy about a course of action. But we usually crash land after following an arc of logic, which in this case has gone largely undiscerned and unaddressed in the public square.
Americans are in a fog about how marriage equality will lead to more central planning and thought policing. This is partly because the media and Hollywood only provide slogans to regurgitate while academics and judges push politically correct speech codes to obey.
Let’s explore the fallout of that arc of faulty logic. Included below are some 15 of the gaping holes in the “marriage equality” reasoning that Americans have not thought through.
1. The Kids Are Not Alright
Last month, six adult children from LGBT households filed amicus briefs opposing genderless marriage …
Whenever a parent is missing — for whatever reason — a child feels a primal wound. In this respect, parents belong to their children more than children belong to their parents. We ought to recognize that privileges of civil marriage should ultimately exist for children, not for adults. Children have the right to know their origins and not to be treated as commodities. Same-sex parenting — which increasingly involves human trafficking, particularly with artificial reproductive technologies (see number eight) — deliberately deprives a child of a mother and/or a father. The “marriage equality” agenda requires that such children bear that burden alone and repress their primal wound in silence.
2. Love’s Got Nothing to Do with State Interest in Marriage
“Love is love” is an empty slogan when it comes to state interest in marriage. How two people feel about one another is none of the state’s business. The state’s interest is limited to the heterosexual union because that’s the only union that produces the state’s citizenry.
And it still is, whether the union happens traditionally or in a petri dish. Each and every one of us — equally and without exception — only exists through the heterosexual union. In any free and functioning society, there is a state interest in encouraging as much as possible those who sire and bear us to be responsible for raising us.
3. The Infertility Canard
Just as the state has no litmus test for feelings or motives, it has no litmus test for any heterosexual couple who do not produce children because of intent, infertility, or age. Conflating same-sex couples with childless or elderly heterosexual couples seems to be the fallacy of composition: claiming something must be true of the whole because it’s true of some part of the whole.
Sorry, but the heterosexual union, no matter how it takes place, is the only way any citizen exists, including intersex and transgender citizens. So recognizing that union without prejudice remains the only reason for state interest in marriage.
4. Same-Sex Marriage Will Settle Nothing
It’s only the starting point for a glut of philosophically related demands for state recognition and approval of many other types of relationships, including polygamy and incest. This will mark the sudden beginning of an even more sudden end for same-sex marriage, not so much because those other types of relationships prove immoral, but because they serve as exhibits for the argument that all civil marriage — including same-sex marriage — is unsustainable and discriminatory.
5. “Marriage Equality” Opens the Path for “Unmarried Equality”
There’s a movement waiting in the wings called “unmarried equality,” which argues that all civil marriage should be abolished because it privileges married people over singles. If same-sex marriage becomes the law of the land, it will set the precedent for abolishing marriage. Far from getting the state out of the marriage business, it will invite the state to regulate all familial relationships, particularly those with children. Once the state doesn’t have to recognize your marriage, it is freer to treat your spouse and children as strangers to you.
6. Transgenderism Is a Big Part of This Package
Americans have not thought through the implications of same-sex marriage and how it is logically a big step to erasing all sex distinctions in law. If we become legally sexless, the implications are vast when it comes to how or whether the state will recognize family relationships such as mother, father, son, or daughter. There’s already a push to eliminate sex identification at birth, which could mean removing sex distinctions on birth certificates. This will seem logical because all gender identity non-discrimination laws already presume that everybody’s sex is something arbitrarily “assigned” to them at birth.
7. It’s an Open Invitation for State Licensing of Parents
If we allow the abolition of sex distinctions and civil marriage — both of which are written into the social DNA of same-sex marriage — we logically allow the state to gain greater control over deciding familial relationships. Civil marriage so far has presumed that a child born into a heterosexual union has the default right to be raised by his biological parents together. How can the presumption of maternity or paternity survive in a legal system that recognizes neither sex distinctions nor a marriage relationship?
The bellwethers are out there. MSNBC anchor Melissa Harris-Perry did a “Forward” spot for the Obama administration in which she stated that all children “belong” to communities, not families. Another friend of the Obama administration, gender legal theorist Martha Fineman, calls for state-subsidized care-giving units to replace marriage and the family.
8. Same-Sex Marriage Commodifies Children
You may think artificial reproductive technologies (ART) are fine as an avenue to obtain children for those unable to conceive. But in the context of genderless marriage, ART ramps up the potential for human trafficking. Check anonymousus.com to read testimonies of grief and loss felt by children who were conceived in this manner. Check the movies Eggsploitation and Breeders by the Center for Bioethics and Culture to hear stories of the exploitation of women in the industry. There is definitely an element of human bondage in all of this, particularly because human beings are being deliberately separated from their mothers and fathers, in a way that echoes the wounds of slavery’s separations and the search for one’s roots.
About the next section (9): we are leaving it in, although we care not a jot about any church’s teachings about anything, because freedom of religion must mean freedom to have no religion. The important points this author makes above and below are matters of reason and common sense .
9. It Sets a Head-On Collision Course with Freedom of Religion
The handwriting is on the wall. You need only reflect on how a screaming mob managed to conjure up total surrender from Indiana Gov. Mike Pence so he would reject that state’s Religious Freedom Restoration Act. Catholic Charities is closing its adoption services where same-sex marriage laws pressure them to reject their church’s teachings about marriage and family. Owners of businesses that serve the wedding industry are being forced to either scrap their consciences or shut their doors. Anti-discrimination lawsuits against churches that don’t perform same-sex marriages will undoubtedly increase.
10. It Sets a Collision for Freedom of Speech and Press
Campus speech codes. Social punishment. Firing Brendan Eich as CEO of Mozilla for discovering his thought crime of privately believing in marriage six years prior. The utter compliance of virtually every big business in America, every media outlet, every pundit who is permitted to have a voice in the public square.
11. It’s Especially On a Collision Course with Freedom of Association
I already mentioned that abolishing civil marriage, along with legal sex distinctions, puts the government in a better position to regulate familial relationships, and probably to license parents. If we think deeply about these things, it’s hard to avoid the fact that freedom of association begins with family autonomy, a place where the state is supposed to leave you alone in your most intimate relationships. It’s hard to see how freedom of association is not affected, especially when PC speech codes have everyone constantly checking their chit chat with neighbors, co-workers, and classmates. At Marquette University, staff were told that any conversation or remarks construed to be against same-sex marriage were to be reported to Human Resources, even if just inadvertently overheard.
12. Same-Sex Kills Privacy by Growing Bureaucracy
With the erosion of family autonomy practically guaranteed by the rainbow arc of same-sex marriage, private life will tend to evaporate, just as it always does in centrally planned societies. Distrust grows because people fear punishment for expressing dissenting views. The emphasis on political correctness in the name of equality, coupled with an ever-growing bureaucracy, is a perfect environment in which to percolate a surveillance society.
13. It’s Meant to Be Global
The United States is already punishing countries and threatening to cut off aid if they don’t accept the LGBT agenda. This is especially true of developing countries, in which the whole idea is foreign to over 95 percent of the population. According to a report by Rep. Steve Stockman, corroborated by a Pentagon official, the administration held back critical intelligence from Nigeria which would have aided in locating girls kidnapped by Boko Haram. The new National Security Strategy recently released by the White House makes clear that the LGBT agenda is a global agenda. And it looks a lot like cultural imperialism of the worst kind.
14. It Promises a Monolithic Society of Conformity
In the past year or two, everyone with something to lose by opposing same-sex marriage — with the honorable exception of Eich — seems to have scuttled their principles. Five years ago, the American Psychological Association voted 157-0 — that’s right, ZERO — to support genderless marriage. For an excellent assessment of what this sort of conformity means for a free society, read Brendan O’Neill’s article in Spiked, entitled Gay Marriage: A Case Study in Conformism. The agenda was imposed by elites, entirely due to a methodical blitzkrieg of programs and enforcement dictated from above. Same-sex marriage simply could not come about without suppressing dissent in all of our institutions.
15. Expect More Severe Punishment for Dissent
If you think the bullying of businesses, churches, and individuals who don’t get with the LGBT program now is bad, it promises to get much worse once codified. Is this really the sort of society you wish to live in? Where expressing an opinion from your heart on faith [or lack of it – ed], family, marriage, relationships, love, or the very nature of reality — is routinely attacked as hate speech? Because that is exactly what you need to expect.
Justice Anthony Kennedy made it very clear in his words of the Windsor decision that any dissent on same-sex marriage was tantamount to animus. It is but a short step from presuming animus to punishing dissent.
So perhaps the biggest question hanging in the air is this: What will the authorities decide to do to dissenters?
On Friday the Supreme Court ruled that the Constitution permits same-sex marriage, in that its guarantees of due process and equal protection under the law mean that states cannot ban it.
The ruling makes it legal in all 50 states.
There were four dissenting opinions: those of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.
Here is most of Justice Scalia’s dissent. (The whole of it, and the other dissenting opinions – as well as the entire “opinion of the court” – can be found here.)
I join the Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.
This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work. The Constitution places some constraints on self-rule — constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire.
These cases [on which the ruling has been given] ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
“The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision — such as “due process of law” or “equal protection of the laws” — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law.
Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment”, thinks the Fourteenth Amendment ought to protect.
That is so because “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions …” One would think that sentence would continue: “… and therefore they provided for a means by which the People could amend the Constitution”, or perhaps “… and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation”. But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning’. The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty” — at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.
This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment”.
A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. …
The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment”. These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinions’ showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”(Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “in any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of a right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”(What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court — we move one step closer to being reminded of our impotence.
One of the footnotes reads:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
The Supreme Court’s decision that upholds the Affordable Care Act undermines the Supreme Court itself.
George Will explains why this is the case. He writes at the Washington Post:
Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. …
The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.
The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.
The decision … resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.
Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting”. That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating”. … [His decision will] empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. Exercising judicial discretion in the name of deference, Roberts enlarges executive discretion. He does so by validating what the IRS did when it ignored the ACA’s text in order to disburse billions of dollars of subsidies through federal exchanges not established by the states. …
Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress.
Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution“.
The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.
Roberts says “we must respect the role of the Legislature” but “a fair reading of legislation demands a fair understanding of the legislative plan”. However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions.
By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.
The Washington Post reports:
Senators left Capitol Hill early Saturday morning without taking action to extend or replace a controversial surveillance program set to expire at month’s end, paralyzed by a debate over the proper balance between civil liberties and national security.
Our tentative answer to the dilemma: As there’s an administration in power that believes government should control our lives, we would vote for civil liberties over national security; if there were an administration that knows it’s first duty is to protect our freedom, we would trust it not to overstep the mark, so we would vote for national security.
And yet …
Trouble is, even if we were so lucky as to get a reasonably trustworthy administration, it could all too easily be replaced by another statist gang such as we have at present.
Readers are invited to give their own views on this difficult conundrum.
This year, June 19 will be the 800th anniversary of the signing of the Magna Carta.
The chief significance of the document is that it established that nobody, not even the King, is above the law.
In England until then, and in all other kingdoms, the monarch was the law. One man (or woman) had total power over every other person in the realm. The monarch was the only free individual.
The Magna Carta also curbed the power of authorities throughout the land, bringing the first protection of individuals from arbitrary arrest and imprisonment – not all individuals, only the barons whose rebellion against King John had brought him to make concessions to them. In so doing, it paved the way for habeas corpus, which ensures early and open trial for everyone who is taken into custody, though it only became law centuries later in 1679.
The idea that people could live in an ordered society ruled not by a person but by the rule of law, had been conceived and put into practice by the ancient Greeks in their city-states, and in pre-imperial Rome, but had been lost to Europe through the long dark Christian centuries. It meant that peoples of different origins, from nations and tribes of varying customs and traditions, could live together as fellow citizens. It did not matter what country they came from, as long as they would obey the same laws. Or as it has often been put: ius not rus (law not land). It was an idea that made monarchs essentially redundant.
And it was the idea that underlay the creation of the Republic of the United States of America.
And continued to influence American constitutional law.
We quote the first paragraph of an essay by H. D. Hazeltine: The Influence of Magna Carta on American Constitutional Development (1917).
For seven [now eight] centuries Magna Carta has exerted a powerful influence upon constitutional and legal development. During the first four centuries after 1215 this influence was confined to England and the British Isles. With the growth of the British Empire during the last three hundred years, the principles of the Charter have spread to many of the political communities which have derived their constitutional and legal systems from England, and which have owed in the past, or which still owe, allegiance to the mother-country. The earliest, and perhaps the most important phase of this imperial history of Magna Carta is its effect upon the constitutions and laws of the American colonies and of the Federal Union that was established after their War of Independence.
The essay concludes:
The history of Magna Carta in America has a meaning far deeper than the influence of a single constitutional document; for Magna Carta typifies those ideals of law and government which have spread to America and to many other political communities that lie beyond the four seas encircling the island-realm itself. The world-wide diffusion of those ideals of liberty and justice deserves to be studied in its entirety, as a vast historical process which had its beginnings far back in the middle ages, and which has shaped and is still shaping in modern times the institutions of all the political commonwealths that owe their spiritual inheritance to England. The history of the Charter’s influence upon American constitutional development, as one phase of that vaster process, should be illuminating alike to subjects of the Crown and citizens of the Republic. Above all it teaches them that English political and legal ideals lie at the basis of much that is best in American institutions. Those ideals, jealously preserved and guarded by Americans throughout their whole history, still form the vital force in political thought and activity within the Union. As the Americans adapt their institutions to the ever-changing conditions of national and international life, those ideals of liberty and justice, founded upon the Great Charter, will continue to inspire and guide them. The Charter has a future as well as a past in the American commonwealth, for its spirit is inherent in the aspirations of the race.
We can interpret “the race” to mean “the human race” – even if that was not exactly what Mr. Hazeltine himself meant by it.
But are the ideals of liberty and justice still continuing to inspire and guide the people of the United States of America?
Tragically, there are now many reasons to doubt it. At present America has a leader, Barack Obama, who manifests no acceptance of the idea that the law is above him. An attorney general, Eric Holder, has blatantly refused to apply the law equally to people of different ethnicities. Individuals protected by the administration have acted in the interests of the ruling party (Lois Lerner of the IRS – see here and here) or in their own interest (Hillary Clinton – see here), arrogantly defying the law with impunity.
It would take much more than a great document now to restore the Union to the republic of its founders’ intentions.
Rick Roderick expounds John Stuart Mill:
Further to stress the supreme importance of liberty and reason, here is our summary of excellent points made in an article by Jeffrey Tayler, a contributing editor at the Atlantic.
Astonishingly, the article was published by the far-left periodical Salon. It is quite long, but it is good, and may be read in its entirety here.
Last week’s assault on the “Draw Muhammad” cartoon contest that Pamela Geller hosted in Texas proves the jihad against freedom of expression has opened a front in the United States. She and those with her came close to being murdered, yet some in the media blamed her for the gunmen’s attack.
Acceptance of the fraudulent term “Islamophobia” contributes to the generalized befuddlement on the left about the faith in question and whether negative talk about it constitutes some sort of racism. It patently does not. Unlike skin color, faith is not inherited and is susceptible to change. As with any other ideology, it should be subject to unfettered discussion, which may include satire, ridicule and even derision. The First Amendment protects our right to practice the religion of our choosing or no religion at all, and our right to speak freely, even offensively, about it. From a rationalist’s perspective, any ideology that mandates belief without evidence is a priori dangerous and liable to abuse.
The “Prophet” Muhammad transformed the Despot on High into an even more menacing, wrathful ogre, whose gory punishments meted out to hapless souls after death fill many a Koranic verse. Muhammad was a triumphant warlord leading military campaigns that spread Islam throughout Arabia. He preceded his invasions by demands that populations either convert or face the sword. Verses sanctifying violence against “infidels” abound in the Koran, and warn that Hellfire awaits those worshipping anything besides Allah. The real meaning of the word “Islam” is surrender — to Allah. Surrendering denotes groveling and humiliation.
We should proudly espouse, as alternatives to blind obedience to ancient texts, reason, progress, and the wonderful panoply of other Enlightenment ideals underpinning our Constitution and the liberties characterizing Western countries. We cannot wimp out and blame the victims for drawing cartoons, writing novels, or making movies. The media need to begin showing Muhammad cartoons. We must stop traducing reason by branding people “Islamophobes”, and start celebrating our secularism, remembering that only it offers true freedom for the religious and non-religious alike. And we should reaffirm our humanistic values, in our conviction that we have only one life, and need to make the most of it. There is nothing else.
This is not a battle we have chosen; the battle has chosen us. It’s time to fight back, and hard.
Our only quibble would be with this in the original article: “…some in the media on the right and the center-right have essentially blamed [Pamela Geller] for the gunmen’s attacks … ”
While it is true that Greta van Susteren of Fox News did that, and Bill O’Reilly did it too (only to be forcefully and brilliantly contradicted by Megyn Kelly), most of the “blame Geller” opinion is to be found in the left-slanted Islam-supporting media, notably the New York Times. Which is why it is astonishing that Jeffrey Tayler’s article – defending Geller, free speech, and the secular values of the Enlightenment – appeared in Salon.
First Pamela Geller was attacked by terrorists for holding a free speech event. Then she was attacked by the media for the same reason.
Ezra Levant of TheRebel.media looks at the media’s twisted treatment of Geller after the foiled shooting in Garland, Texas.
The left-slanted media want sharia enforced in America rather than US constitutional law.
And not only the left-slanted media. Bill O’Reilly, Laura Ingraham, and Greta van Susteren of Fox News have also blamed Pamela Geller for exercising her free speech rights. Dhimmis all.
However, also on Fox News, the excellent Megyn Kelly argued with Bill O’Reilly and decisively showed him to be wrong – though he still didn’t seem to understand that he was.
Kelly told O’Reilly … the point [Pamela Geller and her organization] were making about free speech was a solid one. The First Amendment, she said, isn’t meant to protect popular speech; it’s meant to protect “the most outrageous, offensive, incendiary speech”.
O’Reilly countered, “It’s always cause and effect… This is what happens when you light the fuse, you get violence.” Kelly was surprised to hear that, telling O’Reilly he sounds like he’s “attacking the event itself”.
When O’Reilly said he would “do it another way,” Kelly got really fired up and said this:
“You know what else the jihadis don’t like? They hate Jews. Should we get rid of all Jews? That’s the path we’re gonna go down if we don’t stop catering to the jihadis.”
Watch the video here.
We learn from Scott Johnson at PowerLine:
On April 15 the William F. Buckley, Jr. Program at Yale inaugurated its annual Disinvitation Dinner. … Keynote speaker was George Will … took up the subject of the parlous state of free speech. … This is a timely speech on an important subject as liberal fascism continues its march through the institutions.
Scott Johnson selects this extract:
Free speech has never been, in the history of our republic, more comprehensively, aggressively and dangerously threatened than it is now. The Alien and Sedition Acts arose from a temporary, transitory fever and were in any case sunsetted and disappeared. The fevers after and during the First World War and in the early culture war era also were eruptions of distemper rooted in local conditions and local issues bound to disappear, which they did.
Today’s attack is different. It’s an attack on the theory of freedom of speech. It is an attack on the desirability of free speech and indeed if listened to carefully and plumbed fully, what we have today is an attack on the very possibility of free speech. The belief is that the First Amendment is a mistake. . . .
Yesterday the Democratic Party, the oldest political party in the world, the party that guided this country through two world wars and is more responsible than any other for the shape of the modern American state — the Democratic Party’s leading and prohibitively favored frontrunner candidate for the presidential nomination announced four goals for her public life going forward, one of which is to amend the Bill of Rights to make it less protective. It’s an astonishing event. She said that she wants to change the First Amendment in order to further empower the political class to regulate the quantity, content and timing of political speech about the political class — and so far as I can tell there’s not a ripple of commentary about this on the stagnant waters of the American journalistic community.
There is also a video of George Will delivering his entire speech. We cannot import it but we hope our readers will treat themselves to it. It is all meat. We assure you the hour passes very quickly.