Judicial Modesty

Yesterday’s landmark decision in the DC gun ban case produced the anticipated hysterical reaction from the left. But it also provides a useful gauge to measure intellectual honesty.

Today’s Ledger op-ed section starkly demonstrates the difference between an honest liberal – Eugene Robinson – and a dishonest liberal – E.J. Dionne, both Washington Post columnists. From context, it appears that both share the same anti-freedom philosophy: given their druthers, they’d both ban, or severely restrict, civilian access to firearms. But Robinson admits the obvious: the Second Amendment intended to protect an individual right to bear arms. Dionne, contrariwise, accuses the Supreme Court majority of activism for (horrors!!) taking the language of the document seriously.

Alas, both Robinson and Dionne, good leftists, reject the notion that the Constitution actually means what it says and has a fixed, knowable, unchanging meaning. They both advocate for a "living" document; that is, one subject to ad hoc judicial amendment to arrive at politically correct results (in some cases). But Robinson, unlike Dionne, can’t get around the clear language of the document itself; apparently, he’s willing to expand constitutional provisions by judicial fiat, but not contract them.

The reactions of constitutional illiterates like Frank Lautenberg demonstrates clearly the necessity for judges bound by the text and history of the Constitution itself, not by an ideological devotion to arriving at the "right" result. If a case comes out "wrong", the good Senator avers that the problem must rest with "radical" judges, not the document itself. A good little leftist, Lautenberg cares only about results and, if the language of the Constitution seems to stand in the way, he’ll find judges willing to ignore it.

Liberals always advocate for "judicial modesty", as does Dionne, when a legislature impinges property rights or gun rights – which rights leftists consider inconvenient – but let a legislature impose a restriction on abortion – a right not even remotely mentioned in the document – and listen, in vain, for the left’s demands that the judiciary exercise "restraint".

Dionne accuses the Court of "activism" for enforcing a right clearly written into the document itself. Robinson, perhaps reluctantly, but correctly, concludes that, given the history of the country, the thought that the Framers would have entrusted a government with a monopoly on the use of force is absurd.

"Activism" is one of those Humpty-Dumpty words: it means whatever the user wishes it to mean. Conservatives apply it to decisions which depart from the text and history of the constitution; leftists employ it to describe a decision which arrives at the wrong result.

But "activism" is, of itself, not the problem. A court which refuses to act in the face of legislative usurpation of constitutional rights violates its job description every bit as clearly as does one which creates "rights" out of whole cloth. Only when a Court departs from the text and history of the document it purports to construe, so as to arrive at a desired result, does the "activist" label constitute a deprecation.

Put another way, when the Court invalidated attempts to prohibit a peaceful march through Skokie by the American Nazi Party, it "acted", invalidating attempts to silence an unpopular minority viewpoint. And quite properly so. Had it "modestly" refused to act, deferring to the popular will, the rights protected by the Constitution would be meaningless. The whole point of writing down provisions in a constitution is to remove those subjects from popular restriction.

Scalia wrote a masterful opinion. Therein, he nowhere contends that the provision is desirable; he simply sets forth what the people who adopted the provision understood it to mean. That "original understanding" binds judges today, because that’s what constitutions do. There is simply no way other than resort to that understanding to "interpret" a law. Doing otherwise changes courts from interpreters of law to creators of law, a role outside their job description, and one which impinges on the power reserved exclusively to the people.

Indeed, two days produced two fundamentally different opinions. In Heller, Scalia wrote a tract which relied wholly upon the text and history of the Constitution. Just the day before, in a case involving the imposition of capital punishment for child rapists, Justice Kennedy wrote a pitiable example of fluffy nonsense in which he asserted, in effect, that the meaning of the Constitution depends upon judicial interpretations of public opinion polls. ("Evolving standards of decency", words which, if employed by a judge, clearly demonstrate his unfitness for the office he holds.)

Or consider the recent California gay marriage case. The majority there invalidated a legislative enactment based upon a provision written before the Civil War, contending that it "must" be interpreted at a certain level of abstraction. Not that the people who wrote it or adopted it understood it that way, mind you, but because any other interpretation would produce results the majority disliked. Like the New Jersey Supreme Court, the California Court simply ignored the history of the document, making up the law as it went along. Unlike New Jersey, California voters may get a crack at correcting the errors of their black robed masters.

In Heller, Justice Stevens, in a display of rank silliness, contended that the majority " ... would have us believe that 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." That's precisely what the majority contended, and properly so. To demonstrate the absurdity of that statement, imagine that it contended that the majority " ... would have us believe that 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate newspapers." Or "... a choice to limit the tools available to elected officials wishing to combat criminal activity." "Limiting the tools" available to government is PRECISELY what the Bill of Rights was intended to do and it’s downright scary that four members of the highest court in the land believe that they can pick and choose which constitutional rights they will enforce, based upon nothing more substantive than their own quirky views of appropriate policy.

If the people object to the Second Amendment, they have a remedy: amend the Constitution. But until such time as it becomes the desire of the people to change it, we’re stuck with the constitution the Framers bequeathed us, and it is subject to neither judicial amendment nor legislative contravention.

And we should – MUST – choose judges who adhere to that view, not because the Framers, necessarily, got the policy right, but because the power to change the Constitution to meet modern exigencies – if change be necessary – rests EXCLUSIVELY with the people. Judges lack the power to change it based upon "evolving standards", public opinion polls, or international law.

THAT, Mr. Dionne, is "judicial modesty": adhering to the documents as they are written, not as the individual judge -- or the left -- might prefer them to read.

Session Notes

We just did the budget. For the first time since I’ve been here we addressed it first, and got done with it fairly quickly.

Of course, it’s a monstrosity; about the best that can be said of it is that it’s not as bad as those since McGreevey took over.

Now, we’re doing school construction bonding, indebting the state to the tune of another $4 billion. Most of that money flows to Abbott districts, which have done such a wonderful job of maintaining their schools. (They have other priorities, such as building $200 million arenas, public swimming pools, paying their mayors a quarter mil per annum, etc.)

Interestingly, standing in the statehouse, a facility more than 200 years old, the sponsors contend that schools over 100 years must be replaced – at common expense rather than at the expense of the locals who will benefit.

The prime sponsor noted, in his comments, that this proposal was the reason he ran. Who could imagine that promising your constituents billions of other people’s money would be popular?

* * * * *

The Democrats have grown especially good at creative tax increasing.

According to law, a tax was supposed to expire this year. Can’t have that; it would deprive us of revenue we need to spend on distressed cities (aka urban pork), etc. So, the sponsor rises to tell us the money will be used to support charity care and for nursing homes.

Nonsense. The Bill dedicates not one nickel for those purposes. It simply falls into general revenue.

The Sponsor has a history of, er, creative tax justification. In the past, she’s supported tax increases, justifying them on the grounds that they’d underwrite an extra state police class, a new state helicopter, and additional snow plowing. We got the tax increase, but not the helicopters, the cops or the extra snowplowing.

More later, if motivated ...

Wars of Choice

That Moveon.org should produce an despicable ad constitutes nothing new. Most leftists aren’t wrong because they’re evil, they’re wrong because they’re wrong, but Moveon presses the envelope. Not only are they wrong, they’re pernicious, utterly without scruples or redeeming characteristics

This latest effort depicts a "mother" holding a child, cooing about his growth then saying, to paraphrase, "John McCain, if when you say we’ll be in Iraq for a hundred years, you were depending upon my son, you can’t have him.’

Woah, Nellie.

Now, the left is, and always has been, profoundly anti-military. Just hit a few of the ACLU sites for wonderful information about how to ensure that your impressionable bairns can avoid even so much as hearing from a military recruiter. Or consider the insufferable "Code Pink". Like Bill Clinton, the Left "loathes" the military and cannot fathom the mind set of someone who (GASP!) might consider military service the highest of all callings in a free society. Indeed, but for those young men and women willing to don olive drab, anyone wearing pink might find themselves also wearing a toe tag.

But consider the rank inanity of this ad. First, with any luck, the child will grow up to wholly reject his Mommy’s addlebrained thoughtlessness. Or, at least, be willing to cut the cord and tell his Mom, gently but politely, "I’m 18 now, Ma, and it’s up to ME to make the decisions which affect my life."

Second, what’s so special about Iraq? We will almost certainly reach 100 years in (say) Germany or – perhaps – Korea, or one of the dozens if not hundreds of other places we presently considered worth defending with our lives. Why choose Iraq for special opprobrium? Where's the ad about abandoning Korea?

The Left is always willing to defend freedom in a courtroom, but blanches when defending it requires somewhat more forceful actions. Those legal briefs can be pretty thick, but they won’t stop a bullet. Anyone who thinks that our freedom is grounded in the Constitution – as opposed to the willingness of our citizens to fight and, if necessary, die to defend it – is wholly divorced from reality. Al Queda will not be stopped by injunctions or Supreme Court sophistry; it requires less subtle means of persuasion.

If any of my children want to fight for freedom, I would be astonishingly proud. I’ve suggested it, but I can’t force them to join. A staffer from the Republican Assembly office just shipped out to the Marines, with our awe and gratitude. Without impugning their patriotism (overmuch), I wonder how many Moveon.org folks of the right age have actually served? Or would even consider serving.

And the level of their discourse is so idiotic. "War of choice"? EVERY war is a war of choice. The question presented is whether the alternative is worse. The opposite of war is, often, not peace, but slavery – or worse. The US could have stayed part of Britain; the North could have let the South go. Cutting a deal with the Nazis and the Imperial Japanese would have been easy; merely ignoring their aggression would have sufficed. Letting the North take South Korea would have "saved" 45,000 American lives. If one objects to "wars of choice", those lives were wasted.

Just so in Iraq. Allowing Saddam to continue to lord it over 25,000,000 or so miserable slaves, using rape as a weapon, murdering hundreds of thousands of his own people, launching two wars of aggression, and – according to all the intelligence, as even the Rockefeller report admits – pursuing weapons of mass destruction AGAIN, was certainly an option. It may well be, as Paul Mulshine suggests, that democracy in Iraq – coupled with a desirable outcome (that is, one which does not favor Shia fundamentalism, ala Iran) – is impossible. But that’s a wholly different argument from the one Moveon advances, to wit, that fighting for other people’s freedom is outrageous and unAmerican.

Let’s be clear: Americans haven’t fought for their own freedom since the Revolution. WWII was – as Moveon’s ancestors, the America Firsters, accurately diagnosed – a wholly foreign affair. The US could easily have stayed out of European and Asian conflicts, but Roosevelt – properly – saw a "war of choice" as infinitely better that a world enslaved.

Not one of the men who died on the beaches of Normandy was fighting for American freedom. Not one of the men who died around Pusan or at Inchon was fighting for American freedom. Were those wars "wrong"? Ask a present day South Korean; maybe even a Frenchman.

Is war only correct when it involves direct national self interest? Does it somehow become wrong when, as with just about every war America has ever fought – at least since 1898 – it’s selflessly about preserving the freedom of others?

Perfectly rational reasons exist for opposing the Iraq incursion; reading a Mulshine column sets forth many of them. In part, simple selfishness suffices: what happens to other people around the world simply isn’t our concern. Not especially noble, but understandable. Or, as Paul notes, as between Saddam – a miserable thug but pretty much neutered – and a "free" state which instantly aligns itself with the loonies in Iran, he prefers the former.

THAT makes some sense. Moveon, however, is simply pathetic. Given that the entire Left is, now, based upon urban legends ("Bush lied!!") which they know to be true, so true they must be, it’s hardly surprising. Their "thought" – such as it is – need not be coherent, and, like most emotion-ridden, anger based "thought", it never is.

Ironic, isn’t it, that while many of us honor the last few survivors of the Greatest Generation, because they selflessly defended freedom half a world away, the modern left considers their efforts unworthy, because they fought a "war of choice".

We don’t know how history will judge the effort in Iraq; Truman left office in disgrace, his poll ratings poisoned by popular dissatisfaction over the handling of Korea. Now, he’s widely regarded as a near-great President for courageously standing up for freedom, against tyranny, despite popular opposition. History vindicated him, not his anti-war critics.

Predicting history’s verdict is always a dicey undertaking, but it’s fairly certain that history will regard Moveon as a dishonest, small, squeaky, whiny, disreputable lot of misguided fools.

Because they are.

Fish in a Barrell

The mood is not upon me to offer a column, so I thought I’d just provide some wisdom from the lunatic fringe, Obama division, and brief commentary thereon.

My county Dem organization links to an entity with the catchy title, "Less jobs, more wars." Anything with such rotten grammar in its title (that’s FEWER jobs, dearie) is probably an interesting read, so I proceeded on, to discover that John McCain would deprive women of birth control options because – GASP! – he voted against a bill to compel insurance companies to pay for it. In other words, if we don’t force someone else to pay for something, it won’t exist. Who knew?

Oh, the humanity!! Imagine having to shell out a whole $25 a month or so for birth control. And they pay for VIAGRA!! (Not that there’s any mandate for that, mind. Besides, the correct analogy would be paying for condoms, and no carrier of which I am aware does so). The sexist dogs. There’s a misogynist hiding behind every ... nah, the politically correct types would never forgive me for that particular idiom.

Wonder why insurance costs keep increasing? Now, you know. One mandate after another. (And dollars to donuts says that the cost of the scrips will rise now that the consumer doesn’t care what they cost; someone else is paying.)

Perhaps unsurprisingly, the comments on this section demonstrate a similar, thoughtful quality.

"What most women, poor people, people of color, queers people, and disabled people etc. want is freedom from an oppressive system in this country that preferences money, jobs, and power to white, straight, nondisabled, wealthy men."

(This from a (male) college student -- presumably in the remedial writing department -- with the unmitigated presumption to speak for "most women, queers people", etc.). Likely, in order to deliver us from an "oppressive system" – that is, one which leaves us pretty much alone – we require a massive governmental edifice to dictate outcomes. Slavery is freedom, right?

And, then, consider the commentary from the keeper of the site.

"I, personally, don't want to be rich. Richness implies having more, and that can only happen when other people have less. What I want is equality, where everybody has enough. But that's just me."

Wow, and you thought economic illiteracy wasn’t a national crisis? People can only have more if someone else has less, eh? Remedial econ ain’t enough for this guy. Jeeze, here you were thinking that the Soviets fell in 1990. Apparently, some of their old central planning department landed here (those that didn’t land on the Times editorial staff).

"McCain is a moran!"

(Well, maybe. One Irish name is pretty much the same as another, no? He might have a Moran in his ancestry.)

Another commentator offers this as the Republican legacy:

"War, Outragous Gas Prices, Horrible Ecomony, Weak US Dollar, Highest Employment Rate (22%).

22% unemployment? Woof. How did the Times miss that? I didn't notice almost a quarter of my neighbors out of work. Where could this legion of unemployed be hiding? Heck, only for about a year during the Depression was unemployment that high. Who knew this was 1933?

And, of course, not a single Democrat voted for the Iraq or Afghanistan wars, or made statements about Saddam’s possession of WMD which made Bush look positively restrained. (Jay Rockefeller, call your office).

Leave aside the spelling of "outrageous" and "economy"; anyone can present with typos. But if gas prices are outrageous, same being a product of supply and demand, might not one look at, oh, say, the enviro wackos who prevent essentially any new energy development in the entire country? The Brits, the Norwegians, the Cubas, the Venezuelans, the Russians, all drill or plan to drill in coastal waters. Not us. We might tick off a few fish. Much Russian oil is located in Western Siberia, probably similar in climate and environment to ANWR. They move full speed ahead; we allow a few misbegotten caribou – who would probably like the development, as did their Prudhoe Bay cousins – to stand in the way.

Horrible economy? We’ve had decent, albeit unspectacular growth. But I’d be the first to admit that, with lower corporate taxes, fewer regulations, the elimination of the economic dislocations caused by abominations like the Farm (corporate welfare) Bill (for which every New Jersey Congressional Democrat voted), lower governmental spending, entitlement reform, etc., things could be much better. But they ain’t gonna get no better with a President Obama imposing hundreds of billions in new taxes, bloating the size of government, and cutting off international trade. What the economy needs are more true conservatives in Congress, not FEWER.

Nuff of this; too easy.

Alas. Would that the level of political discourse and political education – especially economic education – were somewhat higher. But if everyone were thoughtful and educated, with whom would a good conservative debate?