A Constitutional Crisis.
Much has been written about a missive that Donald Trump uttered in the last presidential debate. Chris Wallace of Fox News asked him if he would respect the outcome of the election. His answer was less than definitive.
His belief that the election system is “rigged” has caused many in the media to go apoplectic. They have some justification to do so. Our Republic has stood, and shed blood, for over two hundred years, transferring power peaceably from election to election (in contra-distinction to some of our European allies) and this has largely been through the acceptance of election results.
Still, while “The Donald” may have in-artfully called into question the legitimacy of our Republic… It is something that his opponent stated, that I think frankly is far more troubling.
Hillary was asked about her choices for the Supreme Court. Her answer was confusing, convoluted, and ultimately shed no new light on her test for a Supreme Court candidate. Yet she has opined on the subject before, and frankly in a recent interview with George Stephanopoulos of ABC News she states something that is far more insidious to the continuity of our Republic then Trump kvetching about voter fraud.
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Many of you may remember back during the high brow days of the Clinton presidency, his testimony about sexual misconduct seemed to focus less on the act, and more on the language. Bill Clinton famously stated when asked about lying about… er… “activities” taking place in the Oval Office… “well it depends on what the meaning of “is” is.
Hillary has replaced “is” with “if”.
In her interview she is asked about the Second Amendment. Stephanopoulos says “I said, do you believe that their conclusion that an individual’s right to bear arms is a Constitutional right?”
Her response: “If it is a Constitutional right, then it, like every other Constitutional right, is subject to reasonable regulation…..”
When I arrived at Law School I was a firm believer in the “American Wonder Saga Story” I loved history, and our history was unique. Our nation was born not from a desire for power, but a desire to keep power in check. We were intellectual revolutionaries first and foremost. We were a body politic that acknowledged that the individual was sacrosanct, and collectivism ran counter to our inalienable rights. Rights, in my view were based on firm belief that our Framers had identified pre-existing rights and codified them into the Constitution. It was also not an exhaustive list. More rights could be discovered, but once identified were literally written in stone.
Then I had a Constitutional Law Professor that burst my bubble.
“Rights are what the Supreme Court says they are.”
Wait? How? Rights are transcendent? The emanate from the Creator! How can they be subject to the whims and aspirations of nine flawed justices?
Yet, sadly… he had a point.
Still, there is a delicate balance that exists in our society. One that has kept us connected since our founding, (save a five year civil war from 1860 to 1865)… that the individual is the seat of power, and the government exists for a singular reason: To secure the power of the individual.
As our State has increased its dominance over our lives, the “check” has been a reliance on the Supreme Court to assert when the State has intruded to far. The acceptance of “rights” as permanent road blocks to government interference has prevented whole scale revolution.
So… we take a ruling from the Supremes… one that we do not necessarily agree with, yet we accept the validity of the decision. If we can tweak the system with legislative fixes we do… so long as they accept the basic premise that a right has been recognized.
At least that is the case up until now.
While the Supremes may have spoken in Heller v. District of Columbia… acknowledging a pre-existing right to keep and bear arms… further articulating that right as a “fundamental right” thereby extending that right to the States via the Fourteenth Amendment and requiring (in theory at least) any legislation that implicates that fundamental right to withstand a “strict scrutiny” analysis (there must be a compelling State interest, and there must be no less restrictive alternatives) apparently not all are willing to accept that decision.
For Hillary it is still an opened ended question. “If” it is a Constitutional right. Permanence, has been replaced by transiency. An inconvenient right established under one administration can be challenged and overturned by another, again and again. Stare Decisis, the idea of legal permanency, in her mind is a road block to progressive policy.
When the State wrests controls from the People, and the barriers to tyranny are removed it is only a matter of time before the republic falls.
The progressives have been accused,… and frankly have accepted the premise… that they would like to make America more like Europe. They may be successful in their endeavor….like our European counterparts we may soon see the US becoming a failed republic.