Sea Change Ahead – the United States charts a new course
By John D. Turner
12 Jun 2016

There comes a time in the life of every democracy when the winds of change blow, and what started out as a government of the people, by the people, and for the people becomes something else. Our founders knew that. They knew that democracies are typically short-lived on the stage of history. They also knew that democracies are inherently tyrannical to a certain extent; pure democracies are mob rule, where 51% of the people get to make the rules for the other 49%. If 51% think it a good idea to ensure that everyone gets an education through grade school, we get compulsory education through the 6th grade. Likewise, if 51% think it a good idea to enslave a portion of the population for whatever reason, say, the color of their skin, then we have slavery.

Winston Churchill once famously stated, “Democracy is the worst form of government except all the others that have been tried.”

The founders also knew this, which is why the United States is not a pure democracy. It is, as Franklin is said to have put it, “a republic, if you can keep it.” Keeping a republic, like keeping a democracy, is difficult. Ours has lasted for 240 years, which is a long time as such things go, and the signs of rot and decay, of neglect and willful destruction are there; I am not sure how much longer it has left.

There is nothing magical about the U.S. Constitution, the founding document that is the basis for the republic we call the United States of America. It is a piece of paper with ink on it. It does not in and of itself convey freedom and liberty upon the people of this land. It is the embodiment of the words contained therein that ensure our freedom and liberty. It is the understanding of those words by the people, the implementation of those words by those we elect to govern us, and the insistence of the people that those elected officials follow those words that gives us the freedom we have enjoyed as a nation for the past 240 years. Lacking even one of those three leaves us as a people in a precarious state.

During the past 240 years, we have amended the document 27 times. Most of these amendments have been necessary and good; to guarantee certain rights that the government could not overturn (Amendments 1-10); to correct serious defects in our founding that could not be addressed at the time the document was written (Amendments 13, 14, and 15) and to clarify items not clearly addressed, “tweak” others, and ensure with the force of constitutional law, equal rights for all citizens of this great nation.

Unfortunately at the same time we have weakened the checks and balances built into our constitution. A good example of this is the 17th amendment, which changed the way senators are sent to Washington. Previously, senators were chosen by their respective state legislators. This was because it was the job of a senator to represent his or her sovereign state in the halls of congress; it is the job of the representative to represent the people.

Now of course, we directly elect senators, just as we do representatives. The result is that the senate has morphed from reflecting the makeup of the state legislatures and bringing their issues to Washington, to becoming just another House of Representatives, albeit one with fewer members, longer tenure, different roles and responsibilities, and different rules of order. The Senate, instead of being beholding to the states they supposedly represent, are just as beholding to the people for re-election as the House is. While this may seem like a fine idea on the surface, it is just one more nail in the coffin of the concept of a union of sovereign states, as originally envisioned by the founders, and a giant step towards establishment of a monolithic central government, to whom the various states are simply lines drawn on a map with no real power in and of themselves, in the mold of current European parliamentary democracies.

But perhaps the biggest force for changing the original intent of the founders into something else has been the Supreme Court of the United States, which can, in the hand of justices with a mind to, change the entire fabric of the nation with a single ruling. All it takes is enough like-minded judges on the court, and something that has stood since the founding can all of a sudden be “discovered” to be “unconstitutional.” Indeed, even the very Constitution itself, in all its simplicity, can suddenly be “found” to have been “misinterpreted” for the past 240 years, in light of what judges now think “fair,” “equitable,” or “evolved,” in terms of “current understanding,” or even laws enacted in foreign countries.

All it takes is a major change in the composition of the court; and with the untimely death of Antonin Scalia, the foot is in the door for that major change to become reality.

With the court’s most conservative voice now gone, and with a progressive as president, the court is set to shift from a majority “conservative” stance to a majority “progressive” one. Whatever you may say about the presidency of Barack Obama, it is undeniable that his administration has made a mark on the fabric of our nation that will last for decades. He has already put two judges on the court, both progressive, and both fairly young, so they will be there long after he leaves office. Now, he has nominated a third, and if confirmed by the Senate, one which will potentially shift the composition of the court for decades.

There has been a lot of talk and bluster from Republicans concerning this nomination. Mitch McConnell, the Senate majority leader has gone on record as saying, unequivocally, that whomever the President picks will be summarily rejected by the Senate; indeed, that Senate hearings on any nominee will not even begin; and to give them their due, so far they have not. Many Republicans have said that any nominee should wait until after the upcoming election. Some have even proclaimed that Mr. Obama doesn’t have the authority to nominate a new Supreme Court justice before the next election.

This latter is patently absurd; nominating Supreme Court justices is one of the powers granted to the president under the constitution, and the document puts no limits as to when the president may do so. In fact, the document does not even set a definite size on the Supreme Court, leaving that up to Congress, nor does it say that the President can only nominate justices to sit on the court when a sitting judge dies or leaves office voluntarily.

The number of justices on the court has varied throughout the history of our nation. Originally, there were six. This changed to seven in 1807, and in 1837 Congress increased it to nine. In 1863, during the civil war, it jumped to 10, but in 1866 Congress shrank it back down to seven, and, interestingly, prevented President Andrew Johnson, who became president when Lincoln was assassinated, from appointing anyone new to the court. So much for Senator Al Frankin’s (I still cringe when I put the words “senator” and “Al Frankin” together) claim that Mitch McConnell’s move is “unprecedented.”

In 1869, after Johnson left office, the Congress raised the number of justices back to nine and it has been thus ever since, although President Franklin Roosevelt, in an attempt to change the court’s composition to one more friendly to his New Deal policies (the Supreme Court declared most of what he tried to do unconstitutional), tried to get the Congress to pass legislation increasing the number to 15, but failed.

So yes, President Obama can nominate a new justice to replace Scalia, and yes, the Congress can simply decide not to hold hearings on the nominee until after the elections. Should they do so? There are compelling arguments on both sides. It is certainly an inconvenient time to decide to have hearings on a new justice; however it is certainly not unprecedented. In fact, it has happened quite a few times since 1900.

There is a lot of pressure for the Senate to approve whomever the sitting president sends up as it is seen as a prerogative of office for the president to be able to nominate whom they like (elections have consequences) and for the Senate to approve (at least, that is so when the president is a Democrat). However, this is not always the case; since the establishment of the Supreme Court there has been 151 people nominated of whom 29 were rejected. The most recent examples were Harriet Miers, nominated by George W. Bush (Republican); Robert Bork, nominated by Ronald Reagan (Republican); Clement Haynsworth and G. Harrold Carswell, both nominated by Richard Nixon (Republican); and John J. Parker, nominated by Herbert Hoover (Republican), all who were rejected by a Senate controlled by Democrats.

Hmmm. Seems to be OK for Democrats to deny a Republican president’s picks…

So now that the nomination has been made, what will the Republicans actually do? The establishment Republicans have been loath to do anything that might put them in a bad odor. They have caved to President Obama at every opportunity rather than fight, even though they were elected based on campaign promises they made to do exactly that by an electorate that voted in overwhelming numbers demanding they do so. Over and over again they have lied to their base and “gone along to get along.”

This is why there is currently such a divide in the Republican Party, at least amongst the electorate, why establishment candidates have done so poorly in the primaries, and why, against all odds, the candidate going forward (much to the horror of the same establishment Republicans) is none other than Donald Trump. Were the Republican Senate to cave on this issue, it would come as no surprise to many; their “red lines in the sand” seem about as substantive as President Obama’s. The reaction to such a decision however, by the Republican base, would probably be off the charts. Who knows what would happen; Donald Trump might be swept into office by acclimation. Or Hillary Clinton might win a landslide victory as many Republicans stay home in complete and utter disgust with their elected party officials.

If Hillary wins the election, there is no doubt that they will continue to push a Progressive nomination forward, tilting the court 5-4 in their favor. Likely, in the aftermath of the election disaster, Republicans will have no stomach for fighting such a nomination, if it is even possible for them to do so. Elections do have consequences, remember – at least when the winners are Democrats.

If the composition of the court does tilt 5-4 the other way, you can expect big changes in the way things work in the United States of America. For example, expect the second amendment to the Constitution to be dead on its face; interpreted in a very different manner than the other amendments in the Bill of Rights. Indeed, the 9th Circuit Court of Appeals just ruled that there is no constitutional right to carry concealed weapons in public. This ruling, which Hillary Clinton would applaud, makes it nearly impossible to qualify for a concealed carry permit in the State of California; a state which also lacks reciprocity rules with the other states that do allow concealed carry. Hillary has stated on more than one occasion that she doesn’t believe the second amendment grants private citizens the right to keep and bear arms at all. This position would no doubt be reflected by whomever she chose to nominate to the court.

The first amendment will most likely also undergo transformations.

Religious liberty, as we have traditionally known it since the founding of the country, may be vastly scaled back. You will still have the freedom to practice your religion – in church at least, however what you hear in church may well be subject to whatever restrictions Congress and the courts seek to impose. One need look no further than Canada to see what that portends.

Expect to see restrictions on freedom of speech in general as well, similar to what we are now experiencing in our nation’s college campuses. After all, just as you can’t yell fire in a crowded theater, likewise, should you be able to utter speech that may be “hateful” or “hurtful” to others? Should conservative talk radio, blamed by the left for inciting murder and mayhem, be allowed to exist?

What about the Fourth Amendment? That would be the amendment that protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures?” Guess that will hinge on the meaning of the word “unreasonable,” what other countries have done, and what the court determines is “in the public good.” Remember, the needs of the many outweigh the needs of the few.

The Fourth Amendment has nearly become as meaningless as the ninth and tenth already. What does “secure in their persons, houses, papers, and effects” mean anyway? Already police scan our license plates (and our faces in some locations) and match them against databases of known criminals, outstanding warrants, and other “persons of interest” on a regular basis as standard operating procedure. Already we have national-level intelligence agencies collecting what we do on the internet, from the “privacy” of our own homes, monitoring where we go, who we know, what we purchase, whom we contact, and anything else about us that they may deem of “value”. Warrants? We don’t need no stinkin’ warrants! We are protecting the public!

To me, the question of who will be nominated to fill Antonin Scalia’s vacant seat on the Supreme Court is enough reason to go to the polls and vote for Donald Trump; he wasn’t my first choice, but he is what we have. He says he will pick a conservative justice. Will he? Who knows? But I know what Hillary will do - she has said so - and it frightens me. Donald Trump on his worst day will be better than Hillary on any day when it comes to the values I hold dear.

It is de rigueur today to say that the Constitution is an out modeled document that needs to change to reflect our current enlightened society. It is an article of faith amongst progressives that it is a “living, breathing document” that should simply be “reinterpreted” it in a “modern context” to mean whatever we wish it to mean with going through the formality of actually changing it with amendments; such being a nasty, slow, cantankerous and difficult process fraught with danger and high probability of failure. Now, with the passing of the most conservative voice on the court, they may get their opportunity, and we may get to discover what it is like to live without those freedoms we have taken for granted all these years.

But it’s all good, right? After all, they only have our best interests at heart. Just ask them.

Additional Sources: