By Leslie Loftis
Monday, February 22, 2016
Justice Scalia deserved better. Within hours of his
death, we had turned to debating who would replace him on the U.S. Supreme
Court, when, and how. We merely proved him right.
Why does one man—why should
one man—matter so much to our trust in government? Our system is designed to be
one under many. Our sovereign is a plural entity, We the People. How was he so
important that we couldn’t even allow him a day of honoring his memory?
He knew the answer. The U.S. Supreme Court rules supreme
in our land. Its makeup is now of paramount importance to our daily lives.
His worry over the growing power of the Court had turned
into righteous outrage of late. The Court has brought back the rationale of
substantive due process, even if they avoid calling it that because of its
well-deserved bad reputation. It is a complicated bit of legal reasoning that
boils down to claiming that the justices of the Court may elevate anything they
choose to the level of a fundamental right. This sounds simple and good, but as
happens in life, things that sound good often aren’t.
The Crisis Over
Prioritizing Rights
Scalia is famous for waging legal battles about the
priority given to rights and who has the power to alter that priority. In
simplest terms, Scalia gave priority to the rights actually stated in the
Constitution of the United States—such as the freedom of speech, religion, and
press—and thought only We the People could alter those priorities.
For all the legalese in opinions and think pieces on
rights, this isn’t a difficult concept. Some
rights are so essential to a free people that our forbearers bothered to write
them down in a binding legal compact. They even thought to add a few
procedures so we the current people could add rights to that legal compact.
Other justices overthrew all of that. They declared
themselves the discoverers of rights. Better still, they had no qualms about
elevating those discovered rights to the same level as the rights stated in the
Constitution nor finding that those discovered rights could trump the stated
rights. Those other justices granted to themselves the power to rule over us
all. They became an unelected committee of nine robed lords, a benevolent
dictatorship in the making. Only an elite legal education and political clout
to get one of the nine seats are required to rule.
Of course, Scalia stated the problem more colorfully. In
one of last summer’s opinions, he wrote, “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.” Vivid and
correct. Classic Scalia.
Choosing a Prudent
President Is Crucial
Now he’s gone, and that temporary committee of eight
robed lords just became more powerful. Justice Scalia often allied with Justice
Thomas to stand for the rule of law rather than judges’ whims. Without Scalia,
however, Thomas won’t be able to do much more than dissent from the others’
proclamations.
All too late, we can look back and see that we should not
have relied so completely on the Court for our liberty, but the past is done.
Now we must do two things. The first is political. We need to appoint someone
to the court with a legal mind for the rule of law. The Court can quickly move from a passive and ineffective defender of
our Constitution to an active and effective aggressor against it. Having
allowed the Court such power, we must now deal with the fact that they have it.
There have been dozens of articles to this effect since
Scalia’s passing. I will not delve into those details, but will mention the
obvious: we will not make that choice. Our elected president and senators will
decide who that person will be. The best each of us can do is support the
candidate most likely to choose nominees wisely.
Because of his background as an accomplished appellate
lawyer and legal intellectual, Sen. Ted Cruz is the best candidate on this
issue. He is the hardest one to fool. But he might not be the Republican
nominee for president, and there is certainly no guarantee that the Republican
nominee will win the general election.
(For the record, I think Hillary Clinton is a much weaker
candidate than even her detractors predicted. I’ve got a Trading Places $1 bet
with a few friends that the only opposition candidate she can beat is Trump, as
his negative reputation and lack of consistency will neutralize her poor
reputation and lack of consistency. Everyone else can beat her if she can’t
rely on super delegates and other political hocus-pocus. Plus, Cruz’s camp is
the one that has outperformed in Iowa and New Hampshire. Team Cruz shows the
most promise for going against the Clinton machine that has crushed all the
traditional GOP campaigns it has faced in the past.)
You Will Be Made
to Care
While we try to get a rule of law on the Court, as a
practical matter, we must assume that Scalia’s replacement will be another
robed lord. We cannot continue to hide behind the Court if we wish to keep our
constitutional rights. That gets us to the second “to do.” As it happens,
someone has just written a book about this.
About four years ago, Erick Erickson wrote about cultural
assault against religious liberty—one of those rights so important that our
forbearers bothered to list it in the Constitution. He coined a refrain: You
Will Be Made to Care. That is now the title of the book he wrote with Bill
Blankschaen on the erosion of religious liberty in the United States.
It is essentially a story book, only not a story book
anyone will be eager to read. They are ironically labeled “tales of tolerance,”
in which far too many of our fellow citizens have had their livelihoods
devastated, not for actions but for their beliefs. Many of the stories involve
a life destroyed for someone refusing to do something, which runs contrary to
long-established general Anglo legal theory. Common law does not hold
individuals accountable for an act of omission unless one had a duty to act. By
these stories, American law is leaning toward finding that individuals have a
duty to violate their religious beliefs.
It is also sobering to realize how common these stories
are. From the opening of chapter 14, “You have the right to remain silent”:
Perhaps after hearing stories of
oppression by radical secularists, you’re thankful you’re not a florist, baker,
photographer, pharmacist, college student, pizza parlor owner, adoption agency,
or any of the other professions who’ve been attacked for holding to the beliefs
on which Western civilization was formed. But you have to admit, the list of
safe occupations is getting smaller by the day. The sideline is gone. Everyone
is fair game. Everyone—including you—will be made to care.
Break Your Silence
or It Will Break Us All
But we don’t yet care, not really. The problem still does
not seem real because we hide. We keep our faith confined to Sundays and
politics confined to like-minded personal connections. We keep our heads down
and our mouths closed because, of course, we wouldn’t want to offend anyone.
We must stop hiding. That is our second “to do”: refusing
to remain silent—or huddled together in supposedly safe corners of like-minded
villages. Erickson is correct: those safe spaces are shrinking rapidly, and the
safety they offered was an illusion anyway.
There are many ways out of our hiding places. I was
disappointed that the book did not give enough pages to practical advice. No
matter; as I drafted this article, Stella Morabito was giving a speech to the
Family Research Council on resisting the coercive and silencing powers of
cultural pressure. She and I have covered the problem of silence and combatting
it in how-tos and article series. It is a favorite topic of discussion for me,
so feel free to fill the comments with ideas.
We have relied upon the Supreme Court to preserve and
defend us for too long. Any remaining shred of hope for that plan died with
Justice Scalia. As he might put it, we have moved another step closer to being
reminded of our impotence. At this rate, it will be our children and
grandchildren who will be called to sacrifice to restore our republic. While I
accept that might be how the future unfolds, it will not come to pass because I
preferred hiding.
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