In my previous installment in this series I laid out what I said was one of the more significant reasons why the United States is heading towards a Civil War: the end of the ‘rule of law.’
I stayed away from concrete examples so I didn’t distract from the underlying principles, but it is necessary that we do talk about some specifics. In doing so, we will discover that the ones tearing away at the foundations of the ‘bargain’ are almost always liberal progressive secular humanist statist types. Most of the time they don’t perceive the impact of their actions, which is bad enough. Worst of all are those who perceive it and nonetheless justify what they are doing.
Upon inspection, we tend to find out that this latter group has an entirely different concept of the ‘rule of law’ than the one infused into the ‘bargain.’
The ‘rule of law’ built into the ‘bargain’ consisted of all sides turning their backs on getting their way through force, instead submitting themselves to a process where the outcome might not be what they desired, which they would nonetheless comply with. The ‘bargain’ only ‘worked’ if the scope of the things were allowed to enact via the government was narrow, with the most potentially intrusive possibilities also being the most accessible for people to realistically change or reverse. And it only worked if people could vote with their feet.
Modern day liberals have undermined each and every aspect of this ‘bargain,’ justifying themselves as they go. That is to say, they believe that their actions are consistent with the ‘rule of law.’ Their conception is completely independent of the ‘bargain,’ though, which they assume will be honored no matter how they pick away at it. (I discussed this also in this series by way of the removal of ‘pillars.’ Remove enough, and eventually the structure WILL fall; liberals think you can remove them forever, with no harm.)
Here is where a specific example will be useful: Obergefell v. Hodges. That tens and tens of millions of Americans had a deeply held point of view on the question of gay marriage is evident by the fact that thirty, thirty, states actually amended their constitutions in order to put the question on emphatically secure grounds. Amending constitutions, even at the state level, is an especially arduous task, and cannot be achieved without without widespread, enduring support. In one fell swoop, five justices of the Supreme Court invented out of whole cloth a justification for overruling the will of these Americans. I have discussed this elsewhere on this blog, in a similar vein.
Set aside one’s views on gay ‘marriage’ and just consider this development in the context of the ‘bargain’ and the ‘rule of law.’ For those who were opposed to gay ‘marriage,’ they acted in the spirit and the boundaries of the ‘bargain.’ They felt strongly about the matter, but they confined their actions to the state level, where there was such a substantial support for their actions that they managed to amend their constitutions. If anyone did not like it, they could have worked to change their constitutions back. It was within reach. No one was preventing them from trying–which is what the ‘bargain’ is all about. And, if they also felt strongly about the matter, and did not think they could continue to live in these states, they could go to another state. They could move.
This was an option for those who were strongly in favor of ‘gay marriage.’ It is now an option that is completely off the table for those who are strongly against it. Thanks to Obergefell, there is literally nothing you can do in your state and there is literally no state you can go to if you are sufficiently annoyed. The liberal thinks this is consistent with the ‘rule of law’ because a legal process was followed. Everyone is supposed to just smile and nod and comply because 5 jurists invented a reason to get around the plain language of the 10th amendment. 5 jurists blatantly violated the US Constitution in order to countermand the blatantly Constitutional behavior of tens and tens of millions of Americans. As I said in the last post, the ‘bargain’ also only works if the words on the paper are taken as they are written. If you can just make up stuff as you go along, then what’s the point of putting words on the paper, or going through the whole process of passing legislation? All you need, literally, is one activist who can convince just 5 jurists, regardless of the plain text and regardless of the will of millions of people, and you can get whatever you want.
A legal process was followed, indeed, but it wasn’t the ‘rule of law’ at all. It was a return to the way things were before the ‘bargain’ was struck. It was a pure power play, and, now that it has the full reach and might of the Federal government behind it, it is backed by the coercive powers of the United States of America.
This is like taking the ‘bargain’ out to the woods and executing it on the spot.
This was just one ruling. There have been many others, and there are many more on the way. There is, of course, Roe vs. Wade. And as bad as Roe is, and as toxic to the ‘bargain’ as Obergefell was, it may very well be that when historians look back at the causes of the Civil War were, they will look at National Federation of Independent Business v. Sebelius, in which the conservative justice, John Roberts, twisted an already twisted matter in order to do whatever was necessary to ‘uphold’ the ‘constitutionality’ of Obamacare.
I implore the reader to set aside their views on abortion, Obamacare, or gay marriage, or any number of things, and just see what the effect these capricious and arbitrary rulings will have on the ‘bargain.’ As more and more issues are taken up and determined by 9 jurists who are impossible to remove and who have the liberty to just make up stuff, there is less and less that individuals, communities, counties, and states are able to exert their wills on.
If liberals are lucky, conservatives will just decide to play like liberals. They will stop wasting time at the state level and they won’t think in terms of the words on the paper, and will resort to pushing through every thing they want by sheer power plays. If this were to happen, would liberals suddenly re-think their method and approach?
HA! What we have seen so far is that liberals feel that they can violate the ‘bargain’ in every way possible, but you are expected to stick to it. Roe vs. Wade? That’s ‘settled law,’ man! Citizen’s United? There is no way we’re going to let that stand! Governing by executive orders? I’ve got a phone and a pen, man! What, Trump is governing by executive orders? THE HORROR. And on and on it goes. Liberals can do whatever they want. Conservatives have to play by the ‘rules.’
I have been focusing on the courts as examples of tearing away at the ‘bargain’ but this is just one way in which this happens. Liberals are also perfectly happy to pass legislation–at the Federal level–which increasingly encompasses every nook and cranny of human experience, bypassing the states altogether. Set aside the fact that SCOTUS upholds it, the point is that the liberals do it in the first place. But its not just that. Within this paradigm, they are also happy enough to further their will through bureaucracies and regulations.
If it is ridiculously difficult to overturn the whim and wist of SCOTUS, at least you know their names. We rarely, if ever, know the names of the bureaucrats and regulators penning and implementing–and enforcing with the full coercive powers of the Federal government–various increasingly intrusive matters. Here, a thousand examples could be given, if not a hundred thousand. But, just to illustrate, let’s remember that Obamacare was actually written with the phrase “as determined by the Secretary” dozens and dozens of times, with many more instances where regulators are given the right to make final determinations on how the ACA was to be implemented.
Who are these people? How are they to be held accountable? Can they even be held accountable? By virtue of Obamacare alone, these nameless individuals have profound ability to make decisions that impact individual Americans intimately. Now add in what the EPA does, the Department of Education, etc, etc, etc, etc, etc, etc.
Seen in this light, it is clear that the ‘bargain’ is already dead. The reason why people are apprehensive about a ‘civil war’ is because they smell the rotting corpse. When they finally find the murdered body, there will be hell to pay.
I am loathe to continue to harp on the courts when there are really so many other ways in which the ‘bargain’ is mercilessly undermined–mostly by statists–but after I wrote my last post I learned about yet another court case which is about as perfect of an illustration as one might want.
The case is R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, in which the employer requires men to wear one uniform and women to wear another. Great! Until a man says he’s a woman, and wants to start wearing dresses!
Now, in a society which remembers what life was like before the ‘bargain,’ if a man wanted to wear a dress, but was forbidden from doing so while at work by his employer, the man could simply go get another job. He would probably find one easily, too.
But no! You’ve got to stick it to the bigot, make an example of him, and oh, while you are at it, foist your viewpoint on three hundred million people, none of whom have been given a chance to weigh in on the subject. Indeed, most of them don’t even know about it. These, by the by, would be the same folks that about 10 years ago emphatically stated they believed that ‘marriage’ was an arrangement between one man and one woman. So, I suppose in that sense, they did weigh in on it somewhat. But at any rate, should SCOTUS rule in favor of the man, literally overnight employers around the country are going to find that they are going to have to move to comply with the ruling.
Not content to simply find a new job, the dude turned it, literally, into a Federal case.
Initially, the funeral home won in court. It was, naturally, appealed. Finally, it landed before the sixth circuit, which literally invented language which did not exist. The basis for upholding the man’s right to dress like a woman at work was Title VII, which reads that one cannot discriminate based on “race, color, religion, sex, or national origin.”
Let us all remind ourselves that liberals have made it very, very, very clear that sex is not the same as gender; sex and gender are entirely different things; entirely different categories; sex is biological but gender is sociological; sex cannot be chosen, but gender can. And so on. In any rational universe, it would follow then that ‘gender’ has been completely lifted from out of the concept of ‘sex’ so that it cannot possibly be referenced by Title VII, which plainly and explicitly refers to ‘sex’ and not gender.
You would think that, but remember, these are liberals we are talking about. They don’t care about anything except winning, and winning at any cost. So, for the purposes of winning, sex and gender are bundled together! The Sixth Court went along with this exercise, effectively re-writing Title VII to mean, “race, color, religion, sex, gender, or national origin” without the courtesy of actually writing that… which of course would not be their domain. Re-writing legislation is supposed to be done by legislators. So, for no particularly good reason beyond their own personal sentiments–nothing, really, to do with the law–the Sixth Court decided to just make it up.
Now, the theory is that since SCOTUS is controlled now by conservatives, the Sixth Court’s decision is going to be overturned. I’m not so sure. We’ve already got Roberts on record being willing to just make stuff up, and Kavanaugh seems like he could go either way. But this is really not the point. It should not be something that is arbitrated by the Supreme Court at all. It should not be possible for one person to exert his opinion, unilaterally, over and against the will or even the input of 300,000,000 other people, just because you can get 5 others to go along with it. The fact that it is possible is toxic to the ‘bargain.’
Certainly, if over night all employers in the country had to cater to whatever demands the trans community made would not go over well. Remember what I said earlier in this series about how people are able to put up with a lot of crap, as long as they are not party to it. Overnight, every American employer is going to have to effectively affirm the ‘identity’ choices of the employees. But suppose it goes the other way. Overnight, American employers will be given the explicit right to ‘discriminate’ based on ‘gender.’ (When you put it that way, you can just see Justice Roberts desperately trying to find a way–anything–to justify the Sixth Circuit’s decision.)
Not only should this not have made it to the Supreme Court, but there should not even be an EEOC. There shouldn’t even be something called Title VII. These, along with innumerable other laws and agencies, are flatly unconstitutional–if one cares about the plain language of the Constitution, at least.
It doesn’t follow that there would be a right to discriminate willy-nilly. What follows is that the matters could be hashed out at a level where people have a robust way of deciding such matters. Indeed, let us remember that if Roe is over turned, that does not mean that abortion is now automatically made illegal throughout the country. No, if Roe is over turned, the matter is returned to the states. If Obergefell is overturned, the matter is returned to the states. If Obamacare had been overturned, it would have been returned to the states.
Which, if the ‘bargain’ mattered to you, is exactly where you’d want it handled.
Now, liberals tend to think that conservative victories in the courts are just as much ‘judicial activism’ as liberal victories. This is false. Categorically false. It’s the difference between winning the right to beat someone over the head with a baseball bat (a liberal victory) and ruling out someone’s ability to beat you over the head with a baseball bat (a conservative victory).
[Where the conservatives in question are American constitutionalists. I do not mean European ‘conservatives,’ who are, by comparison to American ‘conservatives,’ veritable liberal progressives.)
Usually, ‘conservative’ victories consist in denying some entity–usually the government–the ability to do something to you, whereas ‘liberal’ ones consist in giving some entity–usually the government–the ability to do something to you. When conservatives turn to legislation to ‘do something to you’ it tends to be at the state level, not the Federal level. Now, you may or may not like what they do even at the state level–I often don’t–but at least that is still at the state level. The bargain is left intact; although, as I argued previously, I think even the states have too much power and the counties should become the new ‘states.’
Why is it that liberals are constantly kicking things up the ‘chain,’ outside and beyond their fellow citizens’ reach to influence, deliberate, and determine?
It is not very hard to figure out, and is part of the reason why there is a civil war brewing.
It is simply this: the things that liberals want are not the things that most people want. If the people wanted them, then they would have them–at the state level.
It is precisely because liberals can’t convince their fellow man to enact their policies that they have to turn to the courts, bureaucracies, regulation, etc, to get what they want. They couldn’t convince the population of all fifty states to accept abortion on demand, so they got SCOTUS to do it–oh, and by the way, every American also has to affirm and pay for abortion on demand out of their own tax dollars! They couldn’t convince the population of all fifty states to affirm and endorse gay ‘marriage’ so they got SCOTUS to do it. Obamacare, same thing, although we at least had Congress pass the law, even though it was in violation of the 10th amendment; and since they knew they couldn’t be honest about their intentions and state within the law that they were going to make religious objectors pay for birth control, they put it in the “as the secretary should determine” category, and tried to do it via regulation.
I’ve been using the same examples over and over in this post only because they are among the most visibly egregious examples of violating the ‘bargain.’ They don’t just put matters beyond the reach of citizens, but they require citizens to become complicit to and party to behaviors and programs they feel very strongly about to such an extent that they would move to a different location to avoid… an option denied to them by the nature of how these things are foisted on them.
But there are many, many others. And not all of them are the result of liberals, and we’ve managed to dodge some bullets, because bargain-busting aside, they were still generally palatable to the citizenry at large. (Eg, the civil rights laws). But, generally speaking, they all have in common the fact that they could not persuade their own communities and states to adopt this or that position, so they went ‘over their heads.’ The price to be paid, or how they won, didn’t matter.
As I said previously, a big problem with this is that the people taking the ‘win at all costs’ approach show no indication whatsoever that they plan to stop. They keep pushing, and pushing, and pushing, and pushing, and pushing, and pushing. They believe that they can push forever, and people will just go along with it.
They won’t. But that doesn’t mean the liberals won’t stop pushing, because they are so drunk with their own sense of moral righteousness that they can’t imagine there being even one small town left on the entire globe that does not submit to their determinations on every matter, no matter how intimate, no matter how strongly that the rest of the earth’s population might feel about them. They won’t stop at the US Federal government. They won’t stop at the European Union. Even at these levels they know they still can’t get what they want, fair and square. It’s got to be global. They will never stop pushing. It’s progress, baby. And you are evil, by definition, if you’re not for it.
Things will ‘pop’ before that. I think. But it would be better if we didn’t come to that. For that, we need to return to the terms of the ‘bargain.’
Which is not, I’m afraid to say, going to happen until after we re-learn, in blood, why we struck the ‘bargain’ in the first place.