Trump Wasn’t the Only One to Attack the American Order Last Night

By Charles C. W. Cooke

Thursday, October 20, 2016

For good reason, an awful lot of today’s post-debate reaction will focus on Trump’s refusal to promise that he’ll accept the results of the election. As Ramesh notes, that moment was “the story of the night” — and deservedly so:

I think it’s pretty clear that the story the media will take away from this debate (justifiably) is Trump’s refusal to commit to respecting the outcome of the election. Once again, that is, his message will be the one driving the debate. And once again, his message is not a good one for winning a general election. If his claims that the election is being rigged have any effect on the vote, it will be to depress turnout among supporters of his who believe him.

Whatever Trump’s remark does to the race, it is dangerous in and of itself. The peaceful transfer of power is a key hallmark of the American system, and that Trump couldn’t bring himself to give even a pro forma answer in its favor is absurd. This, as many progressive commentators have noted, is exactly how faith in our institutions is weakened.

But — yes, there’s a but – I can’t help but feel irritated at the on/off nature of journalistic outrage, especially when it comes to the integrity of our constitutional order. As any student of government knows, elections are a key part of what we commonly refer to as “democracy,” but they are not all of it. In liberal democracies — and indeed in republics — we rely upon other institutions to counter-balance simple majority rule. Because it is so well designed, the United States has a host of these: among them the rule of law, separation of powers, a Bill of Rights, a Senate, and so forth. And here’s the thing: They are every bit as important as elections. Without the Bill of Rights and the 14th Amendment, the majority could do whatever it wants to the minority. Without the rule of law, the people’s representatives could act as capriciously as they wished. Without separation of powers, all of the functions of the state would be concentrated in one pair of hands. Elections are crucial to the operation of the American order, of course. But so are all of the other parts. Democracy alone does not a great nation make.

I bring this up because, perusing the news this morning, I see outrage only in one direction. Everywhere – really, everywhere – I see complaints about Trump’s abhorrent comments. And that’s fine: We should be outraged. How dare a presidential aspirant in the world’s finest republic behave in the way Trump has. But, outside of a handful of opinion journals, I see nothing about the attacks we heard on the other parts of the system. That’s a real shame.

As Damon Linker notes over at The Week:

On the Supreme Court, Clinton said, in effect, that she thinks the Court should serve as a second legislative body in which liberals hold a majority of the seats and exercise veto power over the other branches of government.

Linker is exactly right. That is precisely what Clinton was saying, and without any shame or hesitation. And, as Jonah writes, this matters a great deal, because it amounts to an attack on the notion of independent law itself:

In her first answer of the night, Hillary Clinton was asked about the Supreme Court. She said justices should stand up to the rich and side with the people or some such treacle. It should support the usual favored groups, etc. It should fight big money and the powerful. And so on. Only problem: That’s not what justices are supposed to do.

Lest I be misunderstood here, let me make this clear: That Clinton made this case in no way excuses Trump’s disgraceful comments. Not even close. But, by the same token, that Trump made his disgraceful comments in no way excuses Clinton’s. This isn’t an either/or matter. Sure, voters will have to choose just one candidate on Election Day. But the press doesn’t. How hard would it be to explain that there were two extremely worrying moments last night; that both candidates made comments that threaten the American settlement?

A similar double-standard applies to discussion of the U.S. Constitution. Last night, Hillary Clinton demonstrated once again that, when it comes to the Second Amendment, she is either ignorant or she is lying. Asked about her criticism of Heller, Clinton said:

You mentioned the Heller decision, and what I was saying that you reference, Chris, was that I disagreed with the way the court applied the Second Amendment in that case. Because what the District of Columbia was trying to do was protect toddlers from guns.

This is flatly incorrect. Heller, as anyone who has read it knows, revolved around the question of whether the government in Washington, D.C., could legally ban handguns entirely. It had nothing to do with “toddlers.” “Toddlers,” as Sean Davis correctly points out, are not mentioned in the majority opinion, and they are not mentioned in the dissent. Other than in an extremely indirect sense, “toddlers” had nothing to do with the legal question being considered.

Hillary then said:

But there’s no doubt that I respect the Second Amendment, that I also believe there’s an individual right to bear arms. That is not in conflict with sensible, commonsense regulation.

Again, Hillary is either ignorant here, or she is lying. Why? Because a Second Amendment without Heller isn’t a Second Amendment at all. Indeed, absent the affirmation provided by Heller, what would the Second Amendment do exactly? Heller, recall, did not determine the scope of constitutionally permissible regulation, but confirmed that the federal government is permitted to impose neither direct nor indirect prohibitions upon the right of the people to keep and bear arms. By taking the position she is, Hillary is not arguing that, say, an “assault weapons” ban falls within the lines, but that a) Americans enjoy an individual right to keep and bear arms, and b) that the government can institute a blanket ban on an entire class of arms and restrict the rest to the vanishing point. This, clearly, is nonsense, akin in nature to arguing that a) Americans have a right to a free press, and b) that the government can shut down all newspapers and impose draconian restrictions upon the operation of news websites. Perhaps because she knows how utterly unsustainable this tack is, Hillary has avoided making the explicit case that the Second Amendment protects a “collective right” (for more on this conspiracy theory, click here). But in practice that is exactly what she is doing.

And where’s the outrage? Where are the New York Times op-eds? If Donald Trump were to mischaracterize the foundational cases that underpin the Fourth, Fifth, or Eighth Amendments — and to do so vaguely and dishonestly — we would surely hear about what a threat he represented to liberty. Last year, when Trump first suggested a temporary ban on Muslim immigration, the papers were up in arms. “Constitution!” they cried. “Constitution! Constitution!” That Congress actually enjoys plenary power over the immigration system — and that the courts have confirmed this for 125 years – seemed not to matter. The press thought that the Constitution might be violated, and that was enough. But last night, when Hillary Clinton took square aim at a provision within the Bill of Rights, we have heard nothing about it outside of the Right. The outrage over Trump’s comments is real — he really, really should be admonished. But it’s also highly selective, and given that his opponent, not he, is about to be elected president, that should worry us going forward.