My Dear Liberal/Progressive Friends…

 

A tiny bit of Constitutional mansplaining for you, because I think this needs to be made clear. The Constitution exists to protect me from you. It exists to protect you from me, as well. It exists to protect all of us from our very best intentions and their unintended consequences.

The Constitution exists to slow the pace of change, to make it hard to change the fundamental rules of our American coexistence. It isn’t impossible to change those rules, but the Constitution makes it something that requires extensive deliberation and broad consensus.

The Supreme Court exists to protect the Constitution from end-runs around its various safeguards and restrictions. The Supreme Court makes sure that lawmakers and the electorate don’t simply disregard the Constitution when it’s convenient to do so.

So the Constitution and, by extension, the Supreme Court, are fundamentally conservative things: they exist to preserve and protect, to conserve, a set of rules and rights.

This isn’t about “balance.” It isn’t about some kind of equal weighting of “conservative” and “progressive” viewpoints on the bench. That makes as much sense as saying that we’d like half of our doctors to be interested in making people less healthy, or half of our firefighters to be arsonists. No, we would be better off if the Court were 9-0 “conservative,” in the sense that every single one of them had a deep reverence for what the Constitution says and a passionate desire to defend it from error, erosion, and abuse.

I think Kavanaugh is such a man. I know Scalia was. We could use a few more.

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  1. Freesmith Member
    Freesmith
    @

    The desperate arguments for “balance” will come into full flower should Breyer or Ginsburg leave the Court during the Trump Administration.

    • #1
  2. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Henry Racette:

    The Constitution exists to slow the pace of change, to make it hard to change the fundamental rules of our American coexistence. It isn’t impossible to change those rules, but the Constitution makes it something that requires extensive deliberation and broad consensus.

    The Supreme Court exists to protect the Constitution from end-runs around its various safeguards and restrictions. The Supreme Court makes sure that lawmakers and the electorate don’t simply disregard the Constitution when it’s convenient to do so.

    Tell me a tale of Roe and Obergefell.

    • #2
  3. DonG Coolidge
    DonG
    @DonG

    People often don’t appreciate that the constitution is meant to encourage changes at the state level.  National rules are only used for the biggest things.  State-level change means that government is more “of the people, by the people”.  Where some see the bug of “gridlock”, I see the brilliance of subsidiarity.

    • #3
  4. Rodin Member
    Rodin
    @Rodin

    I don’t think it could be said better. But the Court does not always meet this standard.

    • #4
  5. George Townsend Inactive
    George Townsend
    @GeorgeTownsend

    Hear, Hear, Hank! Good Post!

    If I may, the only change I would make to this excellent post is to quit calling nominees to the Bench “conservative”. Rather, they should be called “constitutionalists”, to show people that, even though it has been political for decades now, it never was supposed to be. 

    • #5
  6. Henry Racette Member
    Henry Racette
    @HenryRacette

    George Townsend (View Comment):

    Hear, Hear, Hank! Good Post!

    If I may, the only change I would make to this excellent post is to quit calling nominees to the Bench “conservative”. Rather, they should be called “constitutionalists”, to show people that, even though it has been political for decades now, it never was supposed to be.

    George, that’s perfectly fair. But I like to associate the word “conservative” with the idea in which it’s rooted, in the concept of preserving and protecting what is. I know that a lot of people have a caricature in their minds of what a conservative is; I think they’re mistaken, and the heart of conservativism really is an embrace of the traditional and established.

    When I’m trying to be precise, I refer to conservatives and radicals as the two principle ideological positions, because I think those are really the ends of the essential political spectrum.

    • #6
  7. Umbra of Nex Inactive
    Umbra of Nex
    @UmbraFractus

    Henry Racette:

    The Constitution exists to protect me from you. It exists to protect you from me, as well. It exists to protect all of us from our very best intentions and their unintended consequences.

     

    Devil’s Advocate: Those who voted for Roe and Obergefell would argue that this is exactly what they were doing.

    • #7
  8. Henry Racette Member
    Henry Racette
    @HenryRacette

    Umbra of Nex (View Comment):

    Henry Racette:

    The Constitution exists to protect me from you. It exists to protect you from me, as well. It exists to protect all of us from our very best intentions and their unintended consequences.

     

    Devil’s Advocate: Those who voted for Roe and Obergefell would argue that this is exactly what they were doing.

    Sure they would. But they wouldn’t agree with the part where I said that the Court’s job is to preserve and protect the Constitution. They’d argue that that was a meaningless, or at least wrong-minded, perspective, and that the Constitution is an evolving document that tells us, not what is and isn’t legal, but rather what values are and aren’t to be promoted.

    That’s how the majority in Roe v. Wade were able to reach a pretty nonsensical, extra-Constitutional conclusion: they felt they were serving the public interest, rather than protecting the Constitution. 

    • #8
  9. Freesmith Member
    Freesmith
    @

    Henry Racette (View Comment):

    But they wouldn’t agree with the part where I said that the Court’s job is to preserve and protect the Constitution. They’d argue that that was a meaningless, or at least wrong-minded, perspective, and that the Constitution is an evolving document that tells us, not what is and isn’t legal, but rather what values are and aren’t to be promoted.

    That’s how the majority in Roe v. Wade were able to reach a pretty nonsensical, extra-Constitutional conclusion: they felt they were serving the public interest, rather than protecting the Constitution.

    That’s essentially right. Now, here’s my question: What do you think are your chances of convincing those who take an activist, radical approach interpreting – actually, retconning – the Constitution to abandon the effort?

    • #9
  10. Henry Racette Member
    Henry Racette
    @HenryRacette

    Freesmith (View Comment):

    Henry Racette (View Comment):

    But they wouldn’t agree with the part where I said that the Court’s job is to preserve and protect the Constitution. They’d argue that that was a meaningless, or at least wrong-minded, perspective, and that the Constitution is an evolving document that tells us, not what is and isn’t legal, but rather what values are and aren’t to be promoted.

    That’s how the majority in Roe v. Wade were able to reach a pretty nonsensical, extra-Constitutional conclusion: they felt they were serving the public interest, rather than protecting the Constitution.

    That’s essentially right. Now, here’s my question: What do you think are your chances of convincing those who take an activist, radical approach interpreting – actually, retconning – the Constitution to abandon the effort?

    Low. But, respectfully, that isn’t the question that interests me, nor the question that seems relevant.

    We are politically (as in so many other senses) on a bell curve: most people are relatively neutral and only marginally interested, and generally ill-informed. There are passionate people way over on the left — they’re the ones you’re asking about. And there are passionate people way over on the right — I’m one of those and, since you’re here on Ricochet, I’m going to guess that you’re one too.

    Here’s the thing. We don’t have to persuade the people way over on the left. We have to nudge the people in the large middle a little bit toward the right. For most of us, the most realistic goal is to move as many as possible just a little bit more to the right.

    Those who are already on the right will become just a little more willing to speak up. Those in the middle will be more willing to listen to thoughts from the right. Those a little more to the left will be discouraged from speaking out quite so freely, because they’ll begin to understand that there are reasonable arguments against their positions.

    It’s a gradual thing. When you’re arguing with a hard-core progressive, you’re always arguing for the audience. Otherwise, it’s a waste of  time.

    My opinion.

    • #10
  11. George Townsend Inactive
    George Townsend
    @GeorgeTownsend

    Henry Racette (View Comment):

    George Townsend (View Comment):

    Hear, Hear, Hank! Good Post!

    If I may, the only change I would make to this excellent post is to quit calling nominees to the Bench “conservative”. Rather, they should be called “constitutionalists”, to show people that, even though it has been political for decades now, it never was supposed to be.

    George, that’s perfectly fair. But I like to associate the word “conservative” with the idea in which it’s rooted, in the concept of preserving and protecting what is. I know that a lot of people have a caricature in their minds of what a conservative is; I think they’re mistaken, and the heart of conservativism really is an embrace of the traditional and established.

    When I’m trying to be precise, I refer to conservatives and radicals as the two principle ideological positions, because I think those are really the ends of the essential political spectrum.

    Thanks, Henry. I’m really not trying to nitpick, but I think it is important.

    You know, I am thinking of the Senator from pennsylvania, of years ago – Arlen Specter. I do not like to speak ill of the dead. Let me just say that he had a very cramped definition of conservatism. Once we got a liberal policy, or ruling from the Court, he wanted to conserve it. I know you do not mean it this way, but when you speak of preserving what is, some could think of it as Specter did. Plessy Vs. Fergeson, for example, was a precedent that needed to be overturned. Abortion likewise – in a better world!

    The reason I wrote what I did is because of your use of the term “Political Spectrum”. If they really believed what we believe – that what the law says is how it should be – liberals would also be in favor of Originalism. If course they don’t. They want Big Government policy to prevail, and they really don’t care how this is achieved.

    • #11
  12. Freesmith Member
    Freesmith
    @

    @henryracettemost of your answer is beside the point.

    The general voting public had nothing to do with Roe v Wade, just as it had nothing to do with Wichard, Engel, Miranda, Davis v Carr, Bakke or Obergefell. Those were decisions made by a small group of people in the political class who hold the activist conception of the Constitution you oppose.

    My question was what do you think your chances are to persuade them to your point of view. And your first answer was bluntly accurate – little chance.

    My follow up question in light of that is this: given that progressives will continue to push their activist agenda through the Court any chance they get (and they were only 80,000 votes spread over 3 states from winning the opportunity in 2016 to put 2 more progressives on the Court), how will putting judges who share your interpretation of the Constitution roll back progressive gains?

    • #12
  13. Henry Racette Member
    Henry Racette
    @HenryRacette

    Freesmith (View Comment):
    @henryracettemost of your answer is beside the point.

    Or, what I think more likely, you are mistaken as to my point. I’ll spell it out more clearly.

    The point of my post is to encourage normal people — people who are not presidents, senators, supreme court justices, etc., to better understand and appreciate the conservative perspective, and so to favor candidates who are more conservative.

    I’m not trying to persuade the Supreme Court or our Senators or, G-d forbid, the President. I’m talking to regular Americans.

    I’ll response to your question soon, as time permits.

    • #13
  14. Freesmith Member
    Freesmith
    @

    Henry Racette (View Comment):

    Freesmith (View Comment):
    @henryracettemost of your answer is beside the point.

    Or, what I think more likely, you are mistaken as to my point. I’ll spell it out more clearly.

    The point of my post is to encourage normal people — people who are not presidents, senators, supreme court justices, etc., to better understand and appreciate the conservative perspective, and so to favor candidates who are more conservative.

    I’m not trying to persuade the Supreme Court or our Senators or, G-d forbid, the President. I’m talking to regular Americans.

    I’ll response to your question soon, as time permits.

    I understood the point of your post, Henry. I was more interested in one of your responses to another comment. That’s why I quoted it, not your OP.

    My concern is with how we conservatives successfully combat those who will continue to have the progressive activist approach to Supreme Court jurisprudence that you decry. 

    Will putting judges who share your interpretation of the Constitution, such as (ostensibly) Brett Kavanaugh, roll back progressive gains?

    • #14
  15. George Townsend Inactive
    George Townsend
    @GeorgeTownsend

    Freesmith (View Comment):

    Henry Racette (View Comment):

    Freesmith (View Comment):
    @henryracettemost of your answer is beside the point.

    Or, what I think more likely, you are mistaken as to my point. I’ll spell it out more clearly.

    The point of my post is to encourage normal people — people who are not presidents, senators, supreme court justices, etc., to better understand and appreciate the conservative perspective, and so to favor candidates who are more conservative.

    I’m not trying to persuade the Supreme Court or our Senators or, G-d forbid, the President. I’m talking to regular Americans.

    I’ll response to your question soon, as time permits.

    I understood the point of your post, Henry. I was more interested in one of your responses to another comment. That’s why I quoted it, not your OP.

    My concern is with how we conservatives successfully combat those who will continue to have the progressive activist approach to Supreme Court jurisprudence that you decry.

    Will putting judges who share your interpretation of the Constitution, such as (ostensibly) Brett Kavanaugh, roll back progressive gains?

    May I get in on this?

    Of course it will, if more people like Kavanaugh get appointed. I think that was what Hank was getting at. If we can get more people to vote conservative, especially for the Presidency and for Senate, then we will see more people like Kavanaugh and Gorsuch appointed. If Ruth Bader Ginsburg resigns next, then I believe that Judge Barrett will be appointed. And then, if we have enough Senators who think Constitutionally, we will be on the way to getting a truly superb Supreme Court, one that will make rulings that actually do what the Constitution says.

    • #15
  16. Henry Racette Member
    Henry Racette
    @HenryRacette

    Freesmith (View Comment):

    My concern is with how we conservatives successfully combat those who will continue to have the progressive activist approach to Supreme Court jurisprudence that you decry. 

    Will putting judges who share your interpretation of the Constitution, such as (ostensibly) Brett Kavanaugh, roll back progressive gains?

    For most of us, Freesmith, we do it by educating people about conservatism, by engaging radicals when we encounter them, and by pushing back against radical popular culture. We write, talk, post, vote, and support conservative candidates.

    Yes, putting originalist justices on the Supreme Court will roll back progressive gains — not all of them, obviously, and not instantly. And electing conservatives to Congress and the Presidency will roll back progressive gains. 

    • #16
  17. HeavyWater Inactive
    HeavyWater
    @HeavyWater

    Looks like Rand Paul is skeptical of Trump’s nominee, Brett Kavanaugh.

    Paul told Fox and Friends on Sunday he was worried Kavanaugh, a judge on the DC circuit court of appeals, could cancel out supreme court justice Neil Gorsuch’s vote on fourth-amendment cases and allow the federal government to collect the phone records of millions of Americans.

    We might need John McCain to either make a flight to Washington DC or resign and be replaced by a pro-Kavanaugh Republican Senator.

     

     

    • #17
  18. Henry Racette Member
    Henry Racette
    @HenryRacette

    HeavyWater (View Comment):
    Looks like Paul told Fox and Friends on Sunday he was worried Kavanaugh….

    I am going to hope that this is opportunistic preening on Senator Paul’s part, and that he’ll have the good sense to support this excellent Supreme Court nominee. If he is so foolish as to try to block the nomination, he’ll be setting a preposterously high standard that there’s little hope of reaching with subsequent candidates.

    G-d save us from our libertarian saviors.

    • #18
  19. George Townsend Inactive
    George Townsend
    @GeorgeTownsend

    Henry Racette (View Comment):

    HeavyWater (View Comment):
    Looks like Paul told Fox and Friends on Sunday he was worried Kavanaugh….

    I am going to hope that this is opportunistic preening on Senator Paul’s part, and that he’ll have the good sense to support this excellent Supreme Court nominee. If he is so foolish as to try to block the nomination, he’ll be setting a preposterously high standard that there’s little hope of reaching with subsequent candidates.

    G-d save us from our libertarian saviors.

    I often find myself wishing that Michael Ramirez would do a cartoon, featuring a headstone reading ‘”RIP America”. The caption could read: “But at least we did what Ron Paul wanted: We didn’t ‘spy’ on anyone.”

    • #19
  20. Ray Gunner Coolidge
    Ray Gunner
    @RayGunner

    Henry Racette (View Comment):

    Freesmith (View Comment):

    My concern is with how we conservatives successfully combat those who will continue to have the progressive activist approach to Supreme Court jurisprudence that you decry.

    Will putting judges who share your interpretation of the Constitution, such as (ostensibly) Brett Kavanaugh, roll back progressive gains?

    For most of us, Freesmith, we do it by educating people about conservatism, by engaging radicals when we encounter them, and by pushing back against radical popular culture. We write, talk, post, vote, and support conservative candidates.

    Yes, putting originalist justices on the Supreme Court will roll back progressive gains — not all of them, obviously, and not instantly. And electing conservatives to Congress and the Presidency will roll back progressive gains.

    AND HOW, putting originalist justices on the Supreme Court will roll back progressive gains.  If Kavanaugh is the constitutionalist he says he is; and if Trump gets another appointment; and Thomas stays healthy, gee whiz folks,  Wickard v. Filburn may go up for review, which could mean the restoration of federalism.  Imagine if Congress’s regulatory powers were once again restricted to interstate commerce.   It’s big stuff. 

    • #20
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