"Rule Of Law" When It's Convenient

So, the Los Angeles Times now recognizes that Donald Trump is a menace to the nation, a serial liar and a narcissist, with immense power. It is all but impossible to read their lugubrious, petulant editorial with anything other than a strong dose of schadenfreude. Where was their call that "even the president must submit to the rule of law" when Obama was symbolically evading the Constitution's demand that the Paris Accords must be submitted to the Senate for approval? Or when Kamala Harris rejected Neil Gorsuch's nomination to the Supreme Court because "Judge Gorsuch has consistently valued narrow legalisms over real lives", i.e. he actually applies the law as written vs. how people like Harris would like it to read? Or Hillary Clinton's famous rejection of the First Amendment's "Congress shall make no law" in favor of stifling criticism of her during an election cycle? It's clear that where the law, legal process, and actual accountability to constituencies get between the Democrats and their preferred policies, these they view as nothing more than encumbrance to evade. The hard work of actually convincing people remains undone, and to hear the Times tell it, has no place in their future; one must never speak ill of the government or its agents lest they stoke "public distrust of essential institutions". Indeed, Democrats whooped it up when Obama acted as a king, creating law by executive diktat:

Thanks a lot, liberals. It's all well and good that Joe Biden is now lecturing us that "the worst sin of all is the abuse of power," but where the hell was he—and where were you—for the past eight years, when the president was starting wars without Congressional authorization, passing major legislation with zero votes from the opposing party, and ruling almost exclusively through executive orders and actions?

Mostly exhorting Obama to act "unilaterally" and "without Congress" on terrorism, immigration, guns, and whatever because you couldn't dream of a day when an unrestrained billionaire reality-TV celebrity would wield those same powers toward very different ends. Hell, in the early months of Obama's presidency, The New York Times's Thomas Friedman held up China's "one-party autocracy" as the model to emulate.

It is impossible now to pity them, and just as hard to take seriously calls for a return to the "rule of law" they would forego the instant it became inconvenient.

Jill Filipovic's Weak Case Against Neil Gorsuch and Originalism

For some reason, absurd lightweight and "recovering attorney" Jill Filipovic has escaped my comment before, though I've noticed her typings previously; she came to my attention mostly because she thinks men accused of rape need not be accorded due process, having signed on for the idiotic "affirmative consent" concept. (Protip: it does nothing to change the fundamental he-said/she-said nature of determining consent after the fact, unless one gets a signed affadavit at the time. This is not how any human sexual encounter actually operates.) It says a good deal about her personally that she blocked me on Twitter despite our having no prior interactions, which tells me my ID ended up on an automatic blocklist somewhere.

She most recent styled a jeremiad against constitutional originalism generally and Supreme Court nominee Neil Gorsuch particularly. Laden with straw men, half-truths, and orthodoxy, it serves more as a weathervane for a certain subspecies of liberal opinion than any sort of intelligent analysis. In trying to understand Gorsuch the jurist, wouldn't we want to look at some of the cases he was asked to decide? That would seem reasonable, but here we do not deal with a reasonable person — or even someone conversant with the law and why it is as it is.

Filipovic's dedication to postmodernist interpretation ignores actual arguments in the texts of decisions she criticizes, if she even gets that far. Her total failure to understand the majority opinion in Heller v. District of Columbia, her mischaracterization of the judicial history of the Second Amendment prior to that decision, and her claim that Heller represents a revisionist view (despite a fair number of high-profile liberal legal scholars reluctantly agreeing with its historical accuracy) is common enough, if wrong. Her claim that "The framers of the Constitution didn’t offer any instructions for how to interpret the document, nor did they get into specifics on what each of its provisions meant" is ultimately a cop-out on making any effort to find out what that meaning might be. (Apparently, plain English is no longer a requirement in law school.)

Tediously and redundantly making the "living Constitution" argument (she spends three of her nine points on the same thing), she deceitfully claims that "the writers of the Constitution arguably intended for it to be a living document" while ignoring the amendment process they left us to change it. To Filipovic, the Constitution is whatever she wants it to be, a slab of political copper for a legislative majority to hammer into shape on a whim. That is, she subscribes to the same legal regime that delivered unto us Dred Scott v. Sandford, Wickard v. Filburn,  Smith v. Maryland, and Korematsu v. United States.

In her telling, Gorsuch is merely a damned conservative, a zombie Antonin Scalia "originalist", which according to her, no one really is. (Indeed, Scalia's deference to original intent was rather situational.) It's true that Gorsuch follows Scalia's footsteps in some matters of criminal law, but there one would think liberals might take some solace; he has shied away from strict law-and-order deference to agents of the government. As we have seen thus far in his confirmation hearings, antagonistic Democrats are having a hard go to latch on to a single, clear reason to oppose him.

Filipovic is narrowly right when she observes, "The founders weren’t fortune tellers and couldn’t predict every possible legal issue", but only to the literal extent of that sentence. That is because their intent was that the vast majority of governing would occur at the state or local level; indeed, assent to the Constitution was enacted by the states themselves. The premise and promise of federalism was accountability to those most directly affected by law. One-size-fits-all approaches (e.g. a Federal minimum wage law that sets the floor for rural Wyoming workers as well as Manhattanites, or health care mandates that result in higher prices and fewer choices for people outside the coastal states) have a tendency to backfire. When she writes, "A strictly textual reading of a law isn’t neutral; it also invites in the reader’s own biases and assumptions", presumably she's upset because it isn't her biases and assumptions.

It's not a little ironic, then, when she cites UC Irvine's Erwin Chemerinsky, who rails about the hellscape an originalist legal environment might inflict on his fellow citizens. Among these mostly imagined complaints, he makes the fraudulent, asinine claim that "No longer would the Bill of Rights apply to state and local governments." Do they not teach the 14th Amendment at UCI? The Temperance activists rightly understood that federalism meant they couldn't create a nationwide ban on alcohol without passing a constitutional amendment, thanks to the 10th Amendment delegating most lawmaking to the states. In the post-FDR, "living Constitution" era, the War On Some Drugs can go on with barely a legal peep. Chemerinsky's view of federalism is really the substitution of whatever is most popular at the moment: rights of minorities bear no examination.

There's something odd about her screed appearing in the pages of Cosmopolitan, orthogonal as Filipovic's politics are to Helen Gurley Brown's message of sexual liberation for women. At least Brown understood the risks she undertook (if they frequently turned bitter); Filipovic wants to remake the world into a giant crib — or a jail for men.

Why I'm Not Celebrating Obergefell

My Facebook timeline is awash with people who have chosen to rainbow-ize their profile pictures in solidarity with yesterday's momentous Supreme Court decision, Obergefell v. Hodges. In truth, I'm very happy for my gay and lesbian friends, who may now enter into marriage in all fifty states. And yet, the truth also is, I don't feel much like celebrating with Andrew Sullivan, who posted his first entry after announcing his retirement from blogging back in February. For all that the profoundly conservative gay marriage movement has succeeded in extending acceptance to homosexuality, I find the manner with which it was accomplished to be deeply troubling, and for reasons that Sullivan orbits but never quite touches on:

I remember one of the first TV debates I had on the then-strange question of civil marriage for gay couples. It was Crossfire, as I recall, and Gary Bauer’s response to my rather earnest argument after my TNR cover-story on the matter was laughter. “This is the loopiest idea ever to come down the pike,” he joked. “Why are we even discussing it?”

Those were isolating  days. A young fellow named Evan Wolfson who had written a dissertation on the subject in 1983 got in touch, and the world immediately felt less lonely. Then a breakthrough in Hawaii, where the state supreme court ruled for marriage equality on gender equality grounds. No gay group had agreed to support the case, which was regarded at best as hopeless and at worst, a recipe for a massive backlash. A local straight attorney from the ACLU, Dan Foley, took it up instead, one of many straight men and women who helped make this happen. And when we won, and got our first fact on the ground, we indeed faced exactly that backlash and all the major gay rights groups refused to spend a dime on protecting the breakthrough … and we lost.

In fact, we lost and lost and lost again. Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

I recall all this now simply to rebut the entire line of being “on the right side of history.” History does not have such straight lines. Movements do not move relentlessly forward; progress comes and, just as swiftly, goes. For many years, it felt like one step forward, two steps back. History is a miasma of contingency, and courage, and conviction, and chance.

Which is to say, what it really took, frankly, was this:

Gay marriage is nearly as accepted as heterosexual marriage, and among millennials, the numbers are an avalanche, approaching 80%. It is popularly accepted as a right, and therefore acceptable to defend. Justice Anthony Kennedy's opinion for the majority cited four major reasons for accepting the plaintiff's case: individual autonomy, right to intimate association, safeguarding children and families, and marriage as a foundation of American social order. But ironically, it's Justice John Roberts who chooses deference to politically expressed preference in social order. "It can be tempting for judges to confuse our own preferences with the requirements of the law."

It is ... about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.

 Which is to say, we have a Supreme Court Chief Justice who believes that rights are subject to popular review. The same man who, in Obergefell, wrote "this Court is not a legislature" only the day before in King v. Burwell felt it meet to substitute policy aims over the literal text of the Affordable Care Act — i.e. to act exactly in the place of a legislature. And if Obamacare isn't exactly popular, it's apparently not unpopular enough for the Republicans to deliver a viable alternative — or for the Court to overturn it. In both cases, Roberts counsels deference, which is to say, he advocates for a kind of slow-motion, legalistic mob rule. For anyone familiar with the historical treatment of homosexuals, Jews, blacks, gypsies, and any other hated minority, that is a deeply terrifying prospect.