One of the blogs I subscribe to has a blogger who has gone down a really deep and rather dangerous rabbit hole–one which, if explored fully and subscribed to by a large number of people, could effectively spell the end of (classical) liberal Democracy:
I seriously doubt the blogger has really thought threw the consequences of his assertions, one which is echoed by a small group of left-wing liberals.
A close look at the government’s brief in that appeal suggests that the department is taking seriously the question of the President’s oath as a matter before the courts. But even more strikingly, the brief seems to implicitly admit some measure of doubt as to whether Trump’s oath will be accepted at face value.
The Justice Department’s brief in IRAP frames the question of Trump’s oath in the context of whether or not comments by Trump and his aides suggesting a discriminatory purpose behind the executive order are or are not fair game for the courts to consider. This question—and the case behind it, McCreary County v. ACLU, which permits inquiry into context as a means of evaluating legislative purpose under the Establishment Clause, but forbids “judicial psychoanalysis of a drafter’s heart of hearts”—has emerged as a key point of contention in the judicial dispute over the executive order.
Let’s explore this for a minute, in a larger legal context.
Essentially the argument goes like this: despite being legally elected to office, a President of the United States should have his executive authority stripped because of a belief that the President did not either take his oath of office seriously, or did not understand his oath of office. And because of this, the President represents a threat to the Constitution he will fail to upload.
(You can see this by the commentariat noting that had Obama issued the exact same executive order banning travel for 90 days to perform a review of the procedures for screening immigrants from several countries, countries where local legal infrastructures are insufficient to aid U.S. authorities in determining if immigrants represent a threat to this country, would have been seen as legal.
At issue, the courts appear to have held, is not if the law is legal, but if the President of the United States had discriminatory thoughts when he drafted his executive order. It is also worth remembering that an executive order is not a law; an executive order is an order by the executive to those workers who work for him on how to interpret existing law.)
So here’s two questions I have with this line of reasoning.
First, as we do not have Psi Cops–people with ESP who can read other people’s minds–and we don’t have machines which can read our thoughts–who is to determine within this legal framework what is in the minds of men? Who is to say if Trump’s campaign statements were simply a means to get elected, but his own personal desires are far more benign and accepting of foreigners?
And, for that matter, who is to say that Obama’s statements of cosmopolitanism and acceptance and his posing for GQ were just ways to play to the base, and in Obama’s heart was a far more sinister desire to destroy the Constitution and replace it with a sort of socialism-lite, as some on the far Right have claimed? After all, we have more evidence of Obama’s desire to destroy the constitution than Trump–as measured by the number of executive orders which were found unconstitutional. (In Obama’s case, however, the unconstitutionality was found as a direct conflict with existing constitutional norms, and not because of a supposed “thought crime” found in a liberal left’s reinterpretation of Trump campaign promises.)
Doesn’t this rather explicitly introduce a sort of judicial veto on executive power over Presidents who they simply do not like? After all, if we cannot read a president’s mind, all we have left are what have been used here: campaign promises those Judges do not like.
This is a dangerous precedent, by the way: stripping executive power from a properly elected President because judges simply do not like that President.
Second, and related to the first, is this: once we go down this rabbit hole–once we have a judiciary stripping executive power or forcing executive power to bend to its will despite a public vote–what is the effective popular push-back?
Meaning in this country we tend to switch parties for President on a regular basis, as one party or another go too far to the right or too far to the left. This is a self-correcting process, as it effectively causes politicians to follow cultural norms, and making politicians effectively answerable to the public it represents.
In the short term there can be huge gaps between what the public wants and where the politicians lead us. But in the long term (as measured over decades) the government tends to represent cultural norms and popular desires.
But what happens when the government attempts to “ratchet”: that is, when the government attempts to strip the public of its power over the government by crafting interpretations which deny the public its voice?
Well, there was one such attempt to ratchet the government, in the form of Proposition 8 in California. That would have created a constitutional amendment in the California constitution which defined marriage as between a man and a woman. Another such constitutional ratchet in California, Proposition 63, which defined English as the official language of California, effectively has been interpreted as a “null statement”–a term in Computer Science which indicates a statement which has no effect.
But Proposition 8, when it found itself going against cultural norms towards gay marriage acceptance, was effectively swept aside by judicial fiat. In that case, the ratchet was eliminated by judges who apparently have confused their power as a power over culture.
But what happens when the Left effectively denies the Right the ability to course correct?
That’s how the Tea Party arose, by the way: at first, with a complaint by Rick Santelli about the moral hazards of bailing out certain private home mortgage holders by the government. His complaint included a thought that perhaps people should start a new Tea Party revolt over the government meddling in the markets–and it was taken up at first by a silent majority who found that decades of savings and sacrifice and doing everything right brought them absolutely fuck-all when the government stepped in and helped those who screwed up their finances, bought more than they could afford, and found themselves (due to their own stupidity) broke and in trouble.
The government intervention that resulted essentially penalized those who worked hard, paid their mortgage on time and did everything they could to save and take care of themselves, and rewarded those who spent too much, bought more mortgage than they could afford, and did everything wrong–but who were otherwise able to whine to their congress critters for a break.
With the bourgeoisie values which made this country great under direct attack, they rose up–originally one of the most polite political movements on record, a political protest who had the habit of cleaning up and restoring the public spaces where they protested.
But the government pushed back on them, and the liberals they protested against started the name calling and the attacks.
And a peaceful movement continued to push back, becoming louder and more “in your face.” They became politically savvy, borrowing from the Left’s “Rules for Radicals.” They became more insistent, and attempts by the Left to isolate and freeze them only gave them more political energy.
It’s how we got Donald Trump as President.
Ever shake a bottle of soda pop? The pressure has to go somewhere, and the more you attempt to keep the lid on, the more explosive the result.
Todays judiciary, by finding “thoughtcrime” sufficient in overturning a duly elected President, a President elected to change course away from a commentariat and political base which sees their actions over the previous 8 years as a ratchet that cannot be moved, is simply trying harder to hold the cap on the soda bottle.
Meaning that in our country, when the grievances grow long enough and are ignored by the ruling elite long enough, historically the United States has not been above using violence in order to effect political change.
We have a long history of this.
And today’s political schism, with the Left increasingly using questionable legal tactics to preserve the changes of the last 8 years is not helping today’s political polarization, as a sizable set of of the population believe their own fears and concerns being increasingly ignored and disparaged by an elite cabal whose only links to elitism is an increasingly tight network of familial ties that is starting to look like a collection of royal families.