Tuesday, July 10, 2018

Live by the Supreme Court, Die by the Court

President Trump had barely announced his pick for the United States Supreme Court last night before lefty peaceful protesters were protesting at the Supreme Court. They had "STOP XXX" protest signs already printed up for any of the four leading contenders for the nomination.

So. Whichever of the candidates it is, the lefties are going to be out in the streets, protesting.

Do you see the insanity in this? The idea of street protest, as I understand it, is for the unrepresented, the un-listened-to to get the attention of the ruling class. But the people demonstrating in front of the Supreme Court are not those kind of people at all. Indeed, their agenda: abortion, civil rights, gay marriage, are all supported by the ruling class. No need to protest, kids. It is the little people that have a problem with abortion, because of their adherence to traditional Christian teaching. It is the white working class that has a problem with the "civil rights" of affirmative action, diversity and inclusion, because they are its victims. It is the ordinary middle class that wonders what on earth all the fuss is about, pretending that gays and trans are helpless victims rather than scions of the educated class out for a bit of sexual creativity.

The problem is this: if you use the Supreme Court to implement your agenda because you do not want to take the trouble of persuading other Americans to support your agenda, then your opponents can use the Supreme Court to undo your agenda.

See Barack Obama and his "phone and pen" strategy after Democrats lost their majorities in Congress. If you use the administrative state to implement your agenda by executive orders, then your opponents can undo your executive orders as soon as their side wins the presidency, as President Trump's nominees have done. Hey, not such a good tactic!

The wisdom of the Founders was to erect a political system where it was difficult to pass any measure, because you needed to get both Houses of Congress and the President to approve it. But, on the other hand once you had passed a measure it became hard to repeal it, because repeal takes the vote of two Houses of Congress and the President.

So, in the system of the Founders, it is very difficult, say, to pass an abortion law. Maybe thirty years of advocacy and working to form coalitions with other interests. But if you submit to that kind of discipline the end result is worth it. You have a law passed by a majority of the representatives, and you spent all those years working with people to form a broad coalition. And once the law is passed the issue goes to sleep and disappears.

But look what happens when you use elite opinion to fight an ideological battle, and you eventually win your case in the Supreme Court in a 5-4 decision with all the liberal justices in lock-step and a wavering conservative added in to make the majority. Why, then you have to stay ideologically mobilized forever, because you never know when a President TrumpHitler will nominate a justice to sweep away your pet issue with the stroke of a pen. And notice this: in the Supreme Court strategy you create enemies rather than friends.

So is it really such a great idea to implement your agenda through the Supreme Court?

So why do liberals do it?

Well, let us start with philosopher William James's "Moral Equivalent of War" article back in 1910. The idea was that since we weren't going to have any wars anymore(!) we needed to elevate the minds and lives of our young people with campaigns to raise their consciousness from the humdrum to the elevated. You can see where this leads: from military campaigns to political campaigns, yea, even to moral campaigns. Thus the scions of the ruling class would not grow up to be great military leaders, but great political leaders, or as we now say: "activists."

Hey, but James had a point. First of all, humans crave meaning in their lives.

The problem with this plan is that it naturally merges the state, which is charged with our physical security, with the church, which is charged with our moral welfare. But, as the Founders determined, a state church was not such a good idea, because it would tend to create a moral monopoly backed by the armed might of the state's monopoly of force.

My feeling is that lefties do not see this, not at all. What matters is the moral imperative of building a truly just society. That is all.

This was brought home to me recently from reading Leon Trotsky by Irving Howe. It is 1917 and all the various political factions are holding tumultuous meetings at the All-Russian Congress of Soviets in Petrograd. Then one day Trotsky gets up and announces that the Bolsheviks have seized power. Discussion over. Well, of course. How else would we Bolsheviks build the perfect society to create justice for the workers and peasants?

In other words, most people were trying to work out their differences in the Soviet. But then the Bolsheviks just upped and seized some government offices and said: discussion over. That meant, we now understand, that discussion was over forever, because any return to discussion would surely have meant that the Lenin or the Trotsky or Stalin in power would have had to surrender power to another politician.

By the way, Soviet, or Совет, is a perfectly anodyne Russian word, meaning, as a noun, "council" and, as a verb, to "counsel." But the Bolsheviks turned it into something completely different. That's because, right at the start, they smothered the democratic baby in its cradle, and the normal consultations in meetings of representatives of various interests became rubber stamps that knew to bow the knee to Bolshevik power, or else.

Do you see the problem with the liberal "discussion over" strategy with their rule by Supreme Court? It puts them in the same position as the Russian Bolsheviks. Once you have seized power you have started on the path of no return. You are permanently at ideological war, because you have opted for a policy of force: it is our way, and anyone that opposes us is Hitler. No issue is ever laid to rest, because every issue has been decided by force of ideology.

This, to me, is the explanation of the Democratic effort to derail the nomination of Robert Bork to the Supreme Court in 1987. Robert Bork was a known "originalist" who did not believe in deciding cases by discovering a right to privacy in "penumbras" and "emanations" in the Bill of Rights. In plain terms, he did not agree with the 1973 Roe v. Wade decision on abortion. Liberals decided they had to demolish Bork as a candidate; otherwise all their pet Supreme Court decisions would be struck down by a return to the "original" meaning  of the Constitution. But conservatives have responded by teaching all conservative judges never to admit their political and moral opinions against the day that they will be up for confirmation in the US Senate and liable to a Borking.

Again, do you see the problem? Once you have started rule by Supreme Court and force marched your agenda through the court every Supreme Court nomination is a life-and-death matter. That is not the way that politics and representation and constitutions are meant to work.  The idea is to resolve differences and put them to bed so that they cease to become  a source of conflict.

Unless, of course, you believe in keeping moral issues alive forever. Because you like the smell of political gunpowder.

I come back to the science. Someone did a study and found that if you took a bunch of Americans and put them in a room to solve a problem they would do it, and they would do it by giving each person a piece of the solution. In other words, they threw a crumb out to the losers, so they would get something out of the meeting and own a part of the decision.

The whole point of liberal "activism" is that the losers are moral defectives: racists, sexists, homophobes, and they don't even deserve to eat in restaurants in peace.

The problem with that kind of politics is that it gives the moral defectives no alternative but to push back. And that, I think, is the way to understand the Trump phenomenon.

But liberals just don't get it.

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