The Federalist - Monday February 22, 2016
by Leslie Loftis
Justice Scalia deserved better. Within hours of his death, we had turned to debating who would replace him on the U.S. Supreme Court, when, and how. We merely proved him right.
Why does one man—why should one man—matter so much to our trust in government? Our system is designed to be one under many. Our sovereign is a plural entity, We the People. How was he so important that we couldn’t even allow him a day of honoring his memory?
He knew the answer. The U.S. Supreme Court rules supreme in our land. Its makeup is now of paramount importance to our daily lives.
His worry over the growing power of the Court had turned into righteous outrage of late. The Court has brought back the rationale of substantive due process, even if they avoid calling it that because of its well-deserved bad reputation. It is a complicated bit of legal reasoning that boils down to claiming that the justices of the Court may elevate anything they choose to the level of a fundamental right. This sounds simple and good, but as happens in life, things that sound good often aren’t.
The Crisis Over Prioritizing Rights
Scalia is famous for waging legal battles about the priority given to rights and who has the power to alter that priority. In simplest terms, Scalia gave priority to the rights actually stated in the Constitution of the United States—such as the freedom of speech, religion, and press—and thought only We the People could alter those priorities.
For all the legalese in opinions and think pieces on rights, this isn’t a difficult concept. Some rights are so essential to a free people that our forbearers bothered to write them down in a binding legal compact. They even thought to add a few procedures so we the current people could add rights to that legal compact.
Other justices overthrew all of that. They declared themselves the discoverers of rights. Better still, they had no qualms about elevating those discovered rights to the same level as the rights stated in the Constitution nor finding that those discovered rights could trump the stated rights. Those other justices granted to themselves the power to rule over us all. They became an unelected committee of nine robed lords, a benevolent dictatorship in the making. Only an elite legal education and political clout to get one of the nine seats are required to rule.
Of course, Scalia stated the problem more colorfully. In one of last summer’s opinions, he wrote, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” Vivid and correct. Classic Scalia.
Choosing a Prudent President Is Crucial
Now he’s gone, and that temporary committee of eight robed lords just became more powerful. Justice Scalia often allied with Justice Thomas to stand for the rule of law rather than judges’ whims. Without Scalia, however, Thomas won’t be able to do much more than dissent from the others’ proclamations.
All too late, we can look back and see that we should not have relied so completely on the Court for our liberty, but the past is done. Now we must do two things. The first is political. We need to appoint someone to the court with a legal mind for the rule of law. The Court can quickly move from a passive and ineffective defender of our Constitution to an active and effective aggressor against it. Having allowed the Court such power, we must now deal with the fact that they have it.
There have been dozens of articles to this effect since Scalia’s passing. I will not delve into those details, but will mention the obvious: we will not make that choice. Our elected president and senators will decide who that person will be. The best each of us can do is support the candidate most likely to choose nominees wisely.
Because of his background as an accomplished appellate lawyer and legal intellectual, Sen. Ted Cruz is the best candidate on this issue. He is the hardest one to fool. But he might not be the Republican nominee for president, and there is certainly no guarantee that the Republican nominee will win the general election.
(For the record, I think Hillary Clinton is a much weaker candidate than even her detractors predicted. I’ve got a Trading Places $1 bet with a few friends that the only opposition candidate she can beat is Trump, as his negative reputation and lack of consistency will neutralize her poor reputation and lack of consistency. Everyone else can beat her if she can’t rely on super delegates and other political hocus-pocus. Plus, Cruz’s camp is the one that has outperformed in Iowa and New Hampshire. Team Cruz shows the most promise for going against the Clinton machine that has crushed all the traditional GOP campaigns it has faced in the past.)
You Will Be Made to Care
While we try to get a rule of law on the Court, as a practical matter, we must assume that Scalia’s replacement will be another robed lord. We cannot continue to hide behind the Court if we wish to keep our constitutional rights. That gets us to the second “to do.” As it happens, someone has just written a book about this.
About four years ago, Erick Erickson wrote about cultural assault against religious liberty—one of those rights so important that our forbearers bothered to list it in the Constitution. He coined a refrain: You Will Be Made to Care. That is now the title of the book he wrote with Bill Blankschaen on the erosion of religious liberty in the United States.
It is essentially a story book, only not a story book anyone will be eager to read. They are ironically labeled “tales of tolerance,” in which far too many of our fellow citizens have had their livelihoods devastated, not for actions but for their beliefs. Many of the stories involve a life destroyed for someone refusing to do something, which runs contrary to long-established general Anglo legal theory. Common law does not hold individuals accountable for an act of omission unless one had a duty to act. By these stories, American law is leaning toward finding that individuals have a duty to violate their religious beliefs.
It is also sobering to realize how common these stories are. From the opening of chapter 14, “You have the right to remain silent”:
Perhaps after hearing stories of oppression by radical secularists, you’re thankful you’re not a florist, baker, photographer, pharmacist, college student, pizza parlor owner, adoption agency, or any of the other professions who’ve been attacked for holding to the beliefs on which Western civilization was formed. But you have to admit, the list of safe occupations is getting smaller by the day. The sideline is gone. Everyone is fair game. Everyone—including you—will be made to care.
Break Your Silence or It Will Break Us All
But we don’t yet care, not really. The problem still does not seem real because we hide. We keep our faith confined to Sundays and politics confined to like-minded personal connections. We keep our heads down and our mouths closed because, of course, we wouldn’t want to offend anyone.
We must stop hiding. That is our second “to do”: refusing to remain silent—or huddled together in supposedly safe corners of like-minded villages. Erickson is correct: those safe spaces are shrinking rapidly, and the safety they offered was an illusion anyway.
There are many ways out of our hiding places. I was disappointed that the book did not give enough pages to practical advice. No matter; as I drafted this article, Stella Morabito was giving a speech to the Family Research Council on resisting the coercive and silencing powers of cultural pressure. She and I have covered the problem of silence and combatting it in how-tos and article series. It is a favorite topic of discussion for me, so feel free to fill the comments with ideas.
We have relied upon the Supreme Court to preserve and defend us for too long. Any remaining shred of hope for that plan died with Justice Scalia. As he might put it, we have moved another step closer to being reminded of our impotence. At this rate, it will be our children and grandchildren who will be called to sacrifice to restore our republic. While I accept that might be how the future unfolds, it will not come to pass because I preferred hiding.
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