Last evening we learned of the death of a great American and tireless public servant, Justice Ruth Bader Ginsberg. The timing could not have been better (or worse) for a republic scared, divided, and confused.
My first reaction when Donald Trump won in 2016 (which I had predicted would happen at least nine months before) was disconcert. Not because I feared him as a President; this republic has survived James Buchanan, Franklin Piece, Abraham Lincoln, Ulysses S Grant, two Roosevelts, Woodrow Wilson, Warren Harding, Lyndon Johnson, Jimmy Carter, Ronald Reagan, two Bushes, and any other number of presidents (from either side) you might prefer to revile. My disconcert centered on how the Democrats would respond, precisely because of the age and health of Justice Ginsberg.
In the perennial culture war of the United States, which finds its start with Alexander Hamilton and Thomas Jefferson and continues on tirelessly to this very day, the only constitutional ally to the central government statists (like Hamilton) is the Supreme Court. Our founders spent much time and effort in crafting a very tight constitution where central powers are severely curtailed. Only via a "loose" interpretation of the constitution can those seeking greater federal control, whether they be Franklin Roosevelt or Barack Obama, prevail without the difficult and cumbersome expedient of constitutional amendments.
So you see, for the Democrats (the party where statists have gathered since at least the New Deal} this vacant seat isn't just important; its everything. The whole warp and woof of their identity, and every nail and board of their platform rests upon it. Is there any wonder that paroxysms of hysteria have swept the Democratic Party for the last four years? Can anyone wonder why the hate and vitriol have been so over-the-top since Hillary Clinton lost an election?
The saddest thing of all is that the legacy a great lady is going to be swept into this maelstrom. Whether it was because she was spunky, principled, or from Brooklyn (I will never know) I always liked Justice Ginsberg, and respected the fact that she knew exactly how important her seat was. Like today's cartoon in "Thought of the Day" she made no secret of her partisan leanings, and in fact, reveled in them to the chagrin of senators and presidents alike. She embodied the beauty of loyal opposition and the rule of law that I revere as a Libertarian; even if that meant moving the rule of law in a direction of "loose" construction that I dislike so much as a Libertarian.
For the Republicans, the day does seem to be yours. You are in sight of winning the war even at the danger of loosing the battle of the presidency and most likely congress within the next four years (if not immediately). I fully expect that is what is going to happen too. Regardless of threats and letters and emails and demonstrations and riots and chest-beating and wails and lamentations, the Republican senate and the Republican president are going to do exactly what their constituents have sent them there to do. Just as four years ago they used the parliamentary powers at their disposal to thwart Mr. Obama in naming his justice, they will use the parliamentary powers at their disposal to further the cause of a "strict" construction of the Supreme Court.
So where does that leave the Democrats? If I were a Democrat I would use this time wisely. The Democratic party has many wonderful initiatives that the nation must consider for its healthful survival: affordable health care; infrastructure; equal rights for all people; universal income to offset the unemployment that will be caused by technology; alternate energy; universal civil liberties. These are all noble and important endeavors, and we are lucky that the Democrats are considering them and promoting them. Personally, I have very little problem with most of the Democratic platform. My issue with the Democrats has been (and will always be) their obsession with national scope. As much as I appreciate the nobility of their programs, I value the freedom and liberty of our constitutional federal system far more.
If I were a Democrat, I would honor Justice Ginsberg by carrying her message of social justice and responsibility to every statehouse in the Union. I would work within the system our founders gave us, and like Mitt Romney did in Massachusetts-- experiment and refine your policies and agendas one state at a time. If these are worthy causes they will be copied. Maryland outlawed insurance exclusion for preexisting medical conditions in 1986 as an example. It took a long time for the concept to catch on; but it did catch on. If the Democrats use this time to win converts with success rather than theory and results rather than cudgels, their reforms will be more successful and more universally accepted. They will also remove the need for an activist court. I can think of no better way to honor that feisty jurist from Brooklyn than to reopen the culture war and win it, one state Capitol at at time.
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