David Frenchism and the Supreme Court Decision

 

Over at National Review, David French has this to say about the Supreme Court decision preventing the administration from asking citizenship questions on the census:

Against this legal background, I believed that — like with the travel-ban case — a chaotic process would matter less than the very broad discretion granted the president by existing law. I was wrong.

Today, Justice John Roberts joined the four more progressive judges to reach a legal conclusion (articulated in a complex series of interlocking and competing concurrences and dissents) that roughly goes as follows: Including a citizenship question in the census is not “substantively invalid.” However, the Administrative Procedure Act applies, and it is “meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” Since the administration’s explanation for its agency’s action was “incongruent with what the record reveals about the agency’s priorities and decision making process,” the administration failed to meet its APA obligations.

The secretary of commerce had pointed to an assertion from the Department of Justice that the question would assist in voting-rights enforcement. To put it simply, the majority did not buy that explanation, finding that it was more of a rationalization: The secretary of commerce decided to include the questions, went hunting for a reason, and eventually got the DOJ to help.

Quite frankly, this sounds about right.

I’m starting to see what Sohrab Ahmari means about “David Frenchism.”

It may be that John Roberts found against the administration because he “did not buy that explanation, finding that it was more of a rationalization.” But that’s certainly not true of “the majority” in the persons of the four liberal justices. They found against the administration because the question concerning citizenship violates their progressive political values, and they would have voted in similar fashion whatever the administration’s argument and however sound it might have been. On one side, there are four leftists justices who vote as a solid body and use every opportunity, and every vote, to push leftism as far as they possibly can without respect to legal niceties. On the other, there are five conservative justices, who to varying degrees understand what is going on, but often think through cases as though they were deciding a homeowners insurance claim rather making fundamental decisions concerning the social and political direction of the nation.

In this case, Roberts voted against the administration because, essentially, they didn’t get the paperwork right. This is French’s “chaos.” He might be right about the chaos, but so what? The question at issue is whether the nation can take account of people’s citizenship status while enumerating them for such purposes as congressional seat apportionment. Naturally, the left wants every warm body counted regardless of citizenship status, since the more bodies they can get over the border, the greater their power grows. The four liberal justices get this and will always vote against allowing citizenship questions.

Until conservatives get it, they will never understand the struggle they are in. This doesn’t mean ignoring the law. It means using some judgment concerning what is truly important with respect to the law in the context of socially significant decisions.

I’m reminded of Sgt. Warden in From Here to Eternity in the scene where Pearl Harbor is attacked, and a corporal won’t let him into the armory because he doesn’t have the proper paperwork. Justice Roberts is that corporal.

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  1. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jerry Giordano (Arizona Patrio… (View Comment):

    Western Chauvinist (View Comment):

    The purpose of the census is to count citizens to apportion representation. If we’re counting illegals, it’s just another diminution of our sovereignty as citizens. Surely David French and Justice Roberts understand this?!

    WC, this is not correct. The purpose of the Census is to count persons in order to apportion representation. The Constitutional text (in Art. I, Sec. 2) is:

    Representatives and direct Taxes shall be apportioned among the several States which
    may be included within this Union, according to their respective Numbers, which shall be
    determined by adding to the whole Number of free Persons, including those bound to
    Service for a Term of Years, and excluding Indians not taxed, three fifths of all other
    Persons. The actual Enumeration shall be made within three Years after the first Meeting
    of the Congress of the United States, and within every subsequent Term of ten Years, in
    such Manner as they shall by Law direct.

    I think that it would be advisable to change this to apportion representation by citizenship, but this has not been done.

    Thanks for the correction. Was it simply assumed that “free persons” were citizens and that’s why the distinction wasn’t made? Certainly there were alien residents who wouldn’t have been permitted to vote, weren’t there?

    Also, was the three-fifths clause never redacted and was simply overcome by the Thirteenth? 

    • #151
  2. HankMorgan Inactive
    HankMorgan
    @HankMorgan

    Western Chauvinist (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Western Chauvinist (View Comment):

    The purpose of the census is to count citizens to apportion representation. If we’re counting illegals, it’s just another diminution of our sovereignty as citizens. Surely David French and Justice Roberts understand this?!

    WC, this is not correct. The purpose of the Census is to count persons in order to apportion representation. The Constitutional text (in Art. I, Sec. 2) is:

    Representatives and direct Taxes shall be apportioned among the several States which
    may be included within this Union, according to their respective Numbers, which shall be
    determined by adding to the whole Number of free Persons, including those bound to
    Service for a Term of Years, and excluding Indians not taxed, three fifths of all other
    Persons. The actual Enumeration shall be made within three Years after the first Meeting
    of the Congress of the United States, and within every subsequent Term of ten Years, in
    such Manner as they shall by Law direct.

    I think that it would be advisable to change this to apportion representation by citizenship, but this has not been done.

    Thanks for the correction. Was it simply assumed that “free persons” were citizens and that’s why the distinction wasn’t made? Certainly there were alien residents who wouldn’t have been permitted to vote, weren’t there?

    Also, was the three-fifths clause never redacted and was simply overcome by the Thirteenth?

    All slaves are still counted as three-fifths of a person for representational purposes. All 0 of them.

    • #152
  3. philo Member
    philo
    @philo

    Jerry Giordano (Arizona Patrio… (View Comment): I am very concerned with your acceptance…

    A wonderful comment in full. However, your repeated use of the term “naive” throughout permits a presumption of non-deliberateness from your specific targets that makes even moderately rational beings giggle anymore.

    • #153
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