Sunday, March 2, 2014

Memorandum to the Tea Parties (I)--and others

[Please forward]

In your forthcoming battle to win a Republican Senate majority in November it is essential that you understand and articulate a major danger lurking in the loss of that fight: Obama’s power to appoint a third justice of the Supreme Court of the United States, if Roberts, Scalia, Thomas, Alito, and even Kennedy were to leave the bench in the next year or two.

It is not enough for Americans to know—as too few do, anyhow—that a vote for a United States Senator is a vote for a Supreme Court justice because of the Senate’s Article II power: The President shall have the “Power . . . with the Advice and Consent of the Senate, to . . . appoint . . . Judges of the supreme Court . . . .” (My emphasis.)

Nor is it enough for Americans to know that it has been the justices of the Supreme Court of the United States—with rare exceptions, liberal and conservative alike—who have been responsible for corruption of the Declaration of Independence’s noble recognition of foundational principles of individual rights and limited government, and the destruction of the Constitution and Bill of Rights’ embodiment of those principles.

The Tea Parties must make Americans understand how our nation has gone from “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty, and the Pursuit of Happiness” to today’s all-powerful Congress and imperial presidency.

The theme of my 2013 book The American Constitution and Ayn Rand’s “Inner Contradiction” is this: Since the Supreme Court’s earliest days the animating premises of its decisions in cases involving individual rights, limited government, capitalism, and national sovereignty has been what the late author Ayn Rand identified as “altruism, collectivism, and statism.”
Too many others, lawyers and laypersons alike, see the matter differently. They believe that the fundamental founding principles of this nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights is outdated, that the Constitution’s creation of a representative republic is from a time gone by, and that the Bill of Rights is not a restraint on government but rather a source of newly found, even “creatable” rights. These people are the proponents of the Constitution as a “living document,” and their high priest was the late Supreme Court Justice William J. Brennan, Jr. “[T]he Constitution,” according to Brennan,

embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. * * * When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * *

But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * *

Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. (Speech by Associate Justice of the Supreme Court of the United States William J. Brennan, Jr., to the Text and Teaching Symposium, Georgetown University, October 12, 1985, Washington, D.C., reprinted in “The Great Debate: Interpreting Our Written Constitution,” published by the Federalist Society as Occasional Paper No. 2 (1986).)

In short, the Declaration of Independence, Constitution, and Bill of Rights do not contain immutable principles, but are malleable and thus subject to whatever any majority wants on any given day. (For the compelling opposite view, see my The Supreme Court Opinions of ClarenceThomas, 1991-2011.

The late Ayn Rand, who had emigrated to America from the Soviet Union, has eloquently expressed why the United States was unique in world history:

The dominant ethics of mankind’s history were variants of the altruist-collectivist doctrine which subordinated the individual to some higher authority, either mystical or social. Consequently, most political systems were variants of the same statist tyranny, differing only in degree, not in basic principle, limited only by the accidents of tradition, of chaos, of bloody strife and periodic collapse. Under all such systems, morality was a code applicable to the individual, but not to society. Society was placed outside the moral law, as its embodiment or source or exclusive interpreter— and the inculcation of self-sacrificial devotion to social duty was regarded as the main purpose of ethics in man’s earthly existence.

Since there is no such entity as “society,” since society is only a number of individual men, this meant, in practice, that the rulers of society were exempt from moral law; subject only to traditional rituals, they held total power and extracted blind obedience—on the implicit principle of: “The good is that which is good for society (or for the tribe, the race, the nation), and the ruler’s edicts are its voice on earth.”

This was true of all statist systems, under all variants of the altruist-collectivist ethics, mystical or social. “The Divine Right of Kings” summarizes the political theory of the first—“vox populi, vox dei” of the second. As witness: the theocracy of Egypt, with the Pharaoh as an embodied god—the unlimited majority rule or democracy of Athens—the welfare state run by the Emperors of Rome—the Inquisition of the late Middle Ages—the absolute monarchy of France—the welfare state of Bismark’s Prussia—the gas chambers of Nazi Germany—the slaughterhouse of the Soviet Union
. (Ayn Rand, “Man’s Rights,” The Virtue of Selfishness, 123; my emphasis).

It is well and good, and indeed necessary, for opponents of the Washington regime to decry specific abuses of our founding documents. Obamacare, suffocating taxation, subversion of the Second Amendment, police state tactics of the IRS, a president who acts like the Czar.

But that’s not enough.

The veil must be ripped off, exposing that beneath it lies sacrifice of the individual to the collective, enforced by raw statist government power.

That’s the job of the Tea Parties.

Let ‘er rip!