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If We Can Keep It
About 235 years ago a deal was struck in Philadelphia. It was a compromise, an attempt to balance the sometimes conflicting interests of a sprawling new world.
Upon the conclusion of negotiations, Benjamin Franklin said of America’s not-yet-ratified Constitution:
“I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.” Yet Franklin was astonished that the Constitution, despite its various concessions and compromises, was a document “approaching so near to perfection” as it did.
Franklin understood that, despite differences of opinion even on significant matters, people could share a common goal sufficiently worthy to compel them to make sacrifices in pursuit of their common interests.
We are in a kind of revolution today. The founding principles of free speech, individual liberty, limited government, due process, and rule of law are all under assault from a grasping and relentless progressive left that would abandon our nation’s very framework if it advanced their radical agenda. All that holds them in check is the fear that they will push too fast and too far, overplay their hand, and awaken resistance.
Conservatives — those of us who cherish the nation born in Philadelphia and bequeathed to us through the sweat and blood and striving of our ancestors — should take a lesson from the hard-headed realists of the Constitutional Convention. We have to unite around our common interests, around that free speech, individual liberty, limited government, due process, and rule of law, and work with people who may not agree with us in every particular, but who do agree that those things are essential and non-negotiable.
Other things, we can fix.
We speak of “infrastructure bills,” but that’s just concrete and cable and so much cronyism. America’s infrastructure is an idea, an idea of the relationship between the citizen and the state. That, more than any bridge or railway or pipeline or digital superhighway, must be maintained and preserved.
Everyone who shares that view should join together, acknowledging but agreeing to overlook other disagreements so long as the preservation of that system of government of, for, and by the people is preserved. The rest we can debate in the public square, and reach whatever agreements are possible in a large and diverse population.
It’s time to take this seriously, and to set aside differences that don’t rise to the level of safeguarding the work done more than two centuries ago by the men who shaped the greatest nation on Earth.
Published in General
I share your concern about the enforcement mechanism in the Texas law, but it’s not actually that weird or novel. This sort of thing has been around for decades, largely used by the Left to promote causes ranging from school desegregation to fair housing to environmental issues to consumer protection.
It’s been implemented through two doctrines, one judicial and one legislative. The Texas law is an example of the legislative approach, and it typically called a “private attorney general” mechanism. The judicial doctrine is a broad view of standing that would allow, for example, an individual or a group like the Sierra Club to claim a sufficiently individual interest in environmental protection to have standing to litigate a case.
If you want a bit more detail on the private attorney general question, here’s a law review article from 2005.
In the case of the Texas law, what we’re witnessing is howling from the Left because the Right decided that turnabout is fair play.
We are. I think you have a narrow view of what those ideas are. Embedded in the constitution are the boundaries for just war against your government. Everything from the Reformation to our founding was about defining when it is appropriate and morally just to overthrow a corrupt body politic. Constitutions put it in writing.
That may very well be true. But it seems to me that Texas suffered the demise of several reasonable, common sense (<<giggle>>) abortion limiting bills/laws through progressive cynical overreaction and scheming. If this is the one that sticks…for whatever reason…then so be it.
Sorry, I have no interest in revolutionary talk. We are far from last resorts.
You are pretty good at complaining about my complaining and not exactly offering any specifics. The Texas bill was passed in desperation on what would actually have a slight chance to stand. It is not like there are a buffet of options and we can pass whatever we want in regard to abortion. You haven’t proposed anything other than you enjoy losing. What is an abortion bill you would be for? What does it look like?
I would rather they used a conventional enforcement model, rather than a bounty-hunter approach that puts us on record as supporting this kind of citizen activism model of law enforcement. I can easily see that coming back to bite us later (though I’ll defer to Jerry as to whether or not this kind of thing is already going on).
And, frankly, I think six weeks is too early to draw the line. I will differ with many here, of course, but I’m in favor of legalized abortion, and I would draw the line later than that.
And I complain about your complaining because I think you’re hiding something noxious behind it. I’m still waiting to hear specifics about the things you advocate.
If you use a conventional enforcement model you can sue the enforcers. It is immediately put under injunction and stopped. When citizens can sue any abortion provider there is no one to sue until a citizen brings a complaint. So it is not so easily put under injunction and stopped. Why would we want something to be passed which wouldn’t be held up for less than 24 hours?
In this case, your point is the problem. There actually is a good reason for the legal system to be able to enjoin the enforcement of a law that is plainly unconstitutional under existing precedent.
I think that the existing precedent is wrong. In my opinion, Roe and Casey and progeny were wrongly decided. But it is up to SCOTUS to address this, which I hope that they will do this term.
In the meantime, I do not like the idea of an enforcement measure specifically designed to avoid legal challenge. Imagine if the Leftists did this with a gun ban.
My point those are solidly within the principles of the founding and are constitution.
I think we are further down the road then you do. And I think your vague ideas are doomed to failure. I’ll keep up the mediocre participation at the federal level, but local change moving up is the only option that’s viable.
At some point you’ll see that is true. I’m afraid it’ll be after they take the guns, though.
The left pretty much has guns banned in their states and major cities to begin with. The bigger threat to guns is when Banks and credit card companies decide they’re not processing the payments, credit, or doing business with gun manufacturers and sellers of any stripe. And conservatives will have a hell of a time arguing and keeping muh free market principles when that comes to pass.
Thank you. That is the obvious concern — and the obvious application of this kind of enforcement.
We’ll have to just differ on this, Stina. I think the way to prevent us reaching the point of open defiance, including armed defiance, is to focus our attention on working within the framework the founders gave us.
Incidentally, I am hugely in favor of “local change.” That also is part of the fabric of our nation and its laws.
So, as they say, you do you. And I’ll work within the political process.
We should have bombed the Eccles building the minute the Soviet Union fell.
Everything Moves Towards Communism All Of The Time™