Advice and Affirmative Consent

(Before we begin, a bit of housekeeping. I have said all that I want to say, all that any should ever need to say, about Donald Trump. I shall speak of him no more in this post, and never again if I can help it.)

(And I know, I know what my maybe half of half a dozen readers are thinking (“Andrew! Where have you been in these dark times when we really need you!”~ Nobody) and I can assure you that if there was any reason to think we aren’t in the metaphorical end times of politics, a metaphorical Tribulation in which as a metaphorical Catholic I do not metaphorically believe, I’d probably post a lot more to try and reassure you. There’s nothing to be reassured about. It is that bad.)

There is much to say, and much has already been said, about the death of Supreme Court Justice and legal-theory giant Antonin Scalia. About the event itself it is probably best to say nothing at all. The cynical mind would perhaps think it awfully convenient for the left that Obama get one last chance inflict generational damage on the structure of America itself. But We All Agree that to even wonder whether anything nefarious might be at work is to flirt with insanity itself. And remember, it is what We All Agree To which determines what truth is, and surely not anything else.

But least you think my protestations a bit much, I am not here to talk about today whether a President who has said he’s good at killing people is above applying that to his domestic enemies when not above applying it to foreign civilians presumed guilty until proven innocent (no really, the way the Obama administration counts civilian casualties in drone strikes is by considering every military aged male an enemy combatant until intelligence posthumously exonerates them. I did not make that up. The New York Times may have.)

Instead I’m here to talk about consent. It’s a popular topic these days, especially among feminists, who are probably especially eager to see Scalia replaced with someone more willing to see rights to murder and free birth control where none plainly exist. These Social Justice Warriors who wax eloquent about the pervasive rape culture which literally tells young men that one of the most heinous crimes a person can commit is a perfectly okay thing to do-through such blatantly pro-rape things as that ancient, and clearly outmoded legal principle; Ei incumbit probatio qui dicit, non qui negat. Perhaps, however, before claiming that President Obama has a right to appoint whoever he wants to the Supreme Court, they ought to reconsider. Despite what some twitter leftist apparently believe, nominate and appoint are not words with identical meanings, which is perhaps why, you know, the Constitution refers to both separately. More to the point, however, the appropriate clause of the Constitution is the Advice and Consent clause (“[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint […] judges of the Supreme Court”), and Social Justice Warrior feminists who embrace a very strict notion of affirmative consent-whereby sex or intimate activity in effect requires a notary public to verify in writing that both parties agree to whatever actions will be undertaken by them, and even the reason as to why, before they occur, lest the male party later be legally considered guilty of rape or sexual assault, and again, I am not making this up, as a quick google search would verify)-ought to take note how quickly their male colleagues in the ongoing march of Progress now embrace the doctrine that a man is entitled to consent-As long as that man is Barack Obama.

Right AND Wrong

Much has been made of the alleged “apostasy” of the Romney campaign from the talking points among Republicans, whose campaign strategy to turn the disastrous and wrong Supreme Court decision into a big get out the vote drive was t0 jump on the Court declaring the mandate a tax. What can I say? For once, I agree with Mitt Romney. It shouldn’t have been declared a tax, any proper analysis of the law would have struck it down as an unconstitutional penalty; the fact of the matter is, however, that even when the Supreme Court is wrong, the government is bound to it’s interpretation of the law. So the way I look at it, Obamacare went into the Court an unconstitutional penalty, and left, along with the shredded remains of the Constitution, as a “constitutional” tax, as rewritten by our nation’s latest greatest legislator, John  Roberts.

So why doesn’t any of the media including Fox or WSJ, ask Obama why, if he really believes he didn’t sign a middle class tax hike into law, he doesn’t ask John Roberts to reconsider and declare his law unconstitutional? Why is it that the Obama administration is being allowed to get away with trying to have it both ways and the Republicans are being given a hard time? Even if we go with the media narrative, the we are left to conclude that Romney is an independent thinker who doesn’t just say what other Republicans tell him to, but the Democrats are much smarter because they are all on the same page with different Democrats, but each individual Democrat is not on the same page with him or herself! Baffling!

Madison in Tatters

The Supreme Court has, as I am sure many of you are aware, narrowly upheld Obamacare against constitutional challenge. Many say that this isn’t too big a deal, if we just elect Republicans to the Presidency and Senate, and hold the House, we can repeal it and it does not matter what the Court said because Congress has the power to undo what it has the power to do. This is incredibly shortsighted and fails to grasp that what the Court has done, in effect, is fundamentally alter the nature of the American government. Not merely this decision, but the recent decision to tell the States they cannot decide for themselves how to sentence juvenile murderers, and the decision to tell the States that they cannot maintain their sovereign status even if fully compliant with federal law. Moreover, the Court has just engaged in a clear case of violating the separation of powers among the co-equal branches of the federal government. Has there ever been a more clear case of legislating from the bench? I doubt it. Even the majority opinion concedes their reading of the individual mandate as a tax is not “straightforward” nor is it the most “natural” reading, but on the basis of “precedent” points out it doesn’t have to be an easy reading-if they can go out of their way to save a poorly written law, precedent says they should. The dissenting opinion rightly sees this as quite the stretch, as not only did the government, but also the majority, agree that it was not a tax “for purposes of” the Anti-Injunction Act (that is, the ruled it not a tax for the issue of legal standing) the law is clearly written so that this alleged “tax” is a penalty, a distinction that makes the whole difference as to whether the mandate passes muster. The issue is clearly expounded upon by the dissent. The majority’s opinion is baffling, beyond being wrong.

Truly this is the death Madison’s Federalist vision. Every element of restraint on the government’s power is now gone. The government may now undertake to compel any action of Americans under the power to tax-not merely health insurance, but to use an example given by majority opinion author Roberts, a mandate to purchase energy efficient windows, could be enforced by a “tax.” What the government cannot compel of people is unclear because frankly, it really has no limits any longer. Under penalty of “taxation” under penalty of criminal prosecution, anything may now be required of Americans by their own government. None of this is likely to ever be undone. Congresses will come and go, but in the modern era, Supreme Court cases are essentially forever.

The Kagan Hearings

I didn’t say it here at the time, but the minute I read about how Obama’s Supreme Court nominee wrote that the hearings for Supreme Court nominees have a tendency to be completely vacuous, I predicted that she was not going to be any different. I was mostly right. But even though she has been less than informative, what she has revealed is rather shocking. For one thing, she actually said that she did not think that a law telling people what they would have to eat would be unconstitutional. For another, she actually said that her job would be to enforce the law-I wasn’t aware that she belonged to the Andrew Jackson school of thought about the role of the Supreme Court in government*, but I think anyone who knows anything knows that enforcement is the job of the executive branch.

But if history is anything to go by, she will probably still get on the court, and probably get a sizeable number of Republican votes. This is because, with the exception of Obama’s last nominee, Republicans just rubber stamp the President’s appointments to the Court. Moderate Anthony Kennedy, and the former Justices, liberals O’Connor and Stevens, while all nominated by Republicans, had zero votes against them. Ginsburg (Clinton) got a total of three votes against her appointment, Breyer (Clinton), and Souter (Bush 41) both got just nine votes against them, and all three are arch-liberals. The only Conservative Justice that was appointed by a Republican that got an such overwhelming support was Scalia, who got unanimous support as well. But Thomas (Bush 41) the Court’s most conservative member, barely got confirmed, 52-48 (that every single Senator was present for this vote seems to be another oddity, but obviously the push by Democrats to stop his appointment was virtually without precedent, except for their successful Borking of, well, Bork. Roberts (Bush 43) got 22 votes against, and again, every single Senator showed up and voted. Alito (Bush 43) got 42 votes against, and yes, again, every Senator came out in force to make sure this vote was as close as possible. Sotomayor is, like Scalia, an outlier in terms of the level of support she got considering her ideology-while Scalia got incredible support for a conservative Justice, the level of opposition Sotomayor got was unusually high for a liberal, 31 votes against. If nine Republicans could vote for the wise Latina, though, it seems doubtful that every single one of them can be counted on to vote against a woman as radical as Kagan. They should, but they won’t.

Well, there’s a lot of craziness going on out there right now, but I won’t get into that right now. Still, here’s my nomination for craziness of the week, Deem It Passed is back. Oh, and did you know that, when Strom Thrumond died, NYT called him a “foe of integration”, but when Former Imperial Wizard of the KKK, the man who organized the record setting filibuster of the the Civil Rights Act (which was also opposed by Algore Senior) Robert Byrd died, NYT and everyone else in the media talked about the death of the “soul of the Senate”. What is the difference between these two men’s stories? Only that Byrd stayed in the Democrat party. Oh, and the party that Thurmond switched to just voted for a nominee a black man, over his son. Yes, Thurmond’s son just lost a GOP primary, to a black man. No typo, a GOP primary. But Robert Byrd is the “Soul of the Senate”, while being a Republican means you are nonredeemable for your history as a “foe of integration”. Because Republicans are just evil!

Oh yes, and RNC chairman Michael Steele has put his foot in his mouth again, I’m sure you’ve heard. Son of the Original Neo-con (Irving Kristol) Bill Kristol is calling for him to step down, and I’m almost positive that this will, indeed, be his last mistake. Sad story, but you can’t say something that stupid and expect people to forget about it.

*Sorry, forgot the part where I was supposed to explain this statement.

SCOTUS Says: “Eat it Sonya”

Hehe…

Some Jurisprudence From The Isrealites

Recall that our Western civilization’s laws come to us through a long chain of legal traditions-a sort of cross-cultural jurisprudence. We inherited much of our legal code from the English. They got theirs from the Romans, who were influenced by Christians, who got their’s from the Jews, who got their legal code from Hammurabi, or, if you prefer, God. So it is not for religious reasons only that we may wish to consult with biblical sources on the role of Judges in society. Michael Gaynor does so, and finds the idea of “empathy” in judges to be counter to said legal traditions. Of course, one might also point out that it is not for no reason that Justice is often depicted as blind.