CPAC Speeches Have Become Symbols of Complacency

The big news going into this year’s annual CPAC conference was, as everyone who cares has now heard, the invitation to Milo Yiannopoulos to be a keynote speaker, the revocation of that invitation, and Yiannopoulos’ subsequent loss of his book deal and resignation as senior editor of Breitbart. I had no desire to discuss the drama while it was unfolding, and see no need to offer any exhaustive summary or commentary here.

But it is a symptom of a wider problem with CPAC in particular, and the conservative movement more generally. In recent years, as CPAC has become a bigger and more influential event, the focus has gradually begun to stray from promoting conservative values, and toward promoting the Republican Party in general. When Mitch McConnell and the rest of GOP Congressional leadership is regularly given a favorable platform, by virtue merely of their status in leadership, it is perhaps time for some self-examination. McConnell, and the rest of leadership, has done some good, conservative things. But in what universe is Mitch McConnell emblematic of steadfast conservative leadership?

In a similar vein, in several recent years gay Republican and gay conservative organizations (such as the Log Cabin Republicans and GOProud) were barred from CPAC entirely over their more libertarian attitudes toward homosexuality. But Milo Yiannopoulos, an extravagant celebrity who is openly gay and often talks about his affairs with other men, is offered a keynote speaking role. The invitation was only rescinded after not just videos surfaced of him endorsing what is essentially pedophilia, but after intense public backlash. In other words, it was the reaction to the videos that got the invite rescinded, more so than the actual content of the videos (which were already public). Yiannopoulos might make liberals mad, but he is no conservative and that fact by itself should not be enough to garner a prime speaking slot.

 The vast majority of the attendees understand all this. It’s among the crowds and on the floor of conventions like CPAC that you are most likely to find the most interesting array of differing, yet still conservative viewpoints, not with the (majority) pandering speeches and attention-seekers on the main stage.

Religious Liberty in the Twenty-First Century

Eighty-four percent of Americans identify as Christians of one form or another, but you wouldn’t know it from the coverage many Christians receive in the mainstream media, or the often scornful attitude toward traditional Christian beliefs expressed by the previous administration. Opponents of abortion are portrayed as against personal health and women’s choice. Opposition to gay marriage is painted as the spiritual successor to Jim Crow. Catholic nuns are told by the government that they must provide free contraceptive coverage to their employees or be punished. And in some liberal enclaves, local governments are even demanding copies of ministers’ sermons, in order to be analyzed for disagreeable content.

One of the greatest emerging issues the Supreme Court faces today is in the realm of religious liberty. In this area, recent history is mixed. On the one hand, the current Court has shown itself to be a friend of the First Amendment and freedom of expression, and took a dim view of arguments advanced by the Obama administration that elderly nuns should be forced to grant free access to contraceptives. At the same time, in Obergefell v. Hodges the Court sided with liberals in unilaterally declaring a national constitutional right to same-sex marriage, and opened the door to discrimination against a variety of religious groups who believed differently.

All this means that the appointment of judges committed to the full text and meaning of the First Amendment’s guarantee of religious freedom is of preeminent importance. Judge Gorsuch, fortunately, has a record when it comes to such issues. But the chances are high that Trump will get at least one more appointment to the Supreme Court in his first term, and it is vital that more judges like Gorsuch are appointed—no matter the identity of the judge or judges retiring.

I mentioned Christians specifically at the top of this post, because it is their beliefs most frequently under assault today. But the First Amendment applies equally to all beliefs and religions, and does not single any one out for special protection or prosecution. Muslims, Jews, and Sikhs deserve no fewer protections to practice their beliefs openly than do Christians—but no greater protections, either. The courts would do well to remember that fact.

Some Tuesday Wisdom from the Next Supreme Court Justice

National Review Online has just unearthed a 2005 article written for the publication by a lawyer based in Washington, D.C., one Neil Gorsuch. Go and read the whole thing now.

Obviously, the brief portion of the piece where he touches on electoral politics hasn’t aged especially well. Lines such as “Democrats have already failed to win a majority of the popular vote in nine out of the last ten presidential elections,” are more interesting as historical relics than anything else. And, of course, the era of gay marriage being an automatic loser at the ballot box is over, even with the Supreme Court refusing Gorsuch’s invitation and ruling that all such marriages must be recognized by every state.

But all that is beside the point. The article beautifully illustrates the point, as salient now as it was ten years ago, that liberals rely on the courts and extensive litigation at their, and the country’s peril. Judges should defend rights and strike down laws when appropriate, to be sure. That’s part of the job description. But, again I stress, only when appropriate. Which should not be the open invitation that many on the Left seem to think it is.

And though Gorsuch addresses the Left specifically, conservatives would do well to heed his words. Too often, many on the Right see the great successes Democrats have had at enacting their agenda through the courts (such as a national right to gay marriage and abortion) and push too far in the other direction, calling for example, for the Supreme Court to declare abortion to be unconstitutional across the board. There are right and wrong ways of achieving goals, and this would undoubtedly be a very bad position for pro-lifers to support. If the Supreme Court merely overturned Roe v. Wade and returned the matter to the states and voters to decide, there could then be a much more substantial debate over the ethics of abortion. But to forbid it outright, by court order, would merely repeat the original mistake of Roe by removing abortion from the arena of meaningful public debate.

Liberals, conservatives, and the courts would do well to heed Gorsuch’s words. And Gorsuch himself would do well to remember them.

Norma McCorvey, RIP

Norma McCorvey, better known as Jane Roe—the plaintiff in Roe v. Wade—died over the weekend.

As the obituary at the link notes, she was a complicated woman—accidental architect of one of the most consequential Supreme Court decisions of the past century, and eventually one of its fiercest opponents. In 2005, she petitioned the Supreme Court to overturn Roe, on the primary basis that she, the plaintiff in the original case, regretted her part in the decision. Obviously, the Court declined.

Many believed her conversion to be less about true conviction than an attempt to capitalize on fame. Obviously, no one can know what her true intentions actually were, why she eventually abandoned and took up rhetorical arms against the cause that still considers her to be something of a patron saint. But her actions following her joining of the pro-life cause seemed sincere, if ineffective as tactics. Those, in the end, are all we can judge. Perhaps she acted so rashly, in picketing judicial confirmation hearings, out of a sense of guilt for what she had helped wrought. Or perhaps she was simply seeking attention.

Finally, one cannot help but wonder what became of the child that McCorvey bore only months before the Roe decision was handed down. Her pregnancy with that child, her desire to terminate that pregnancy, was what led the Court to consider the constitutionality of state abortion restrictions in the first place. It seems safe to assume that McCorvey never had any further interaction with, or knowledge of, the child she gave up for adoption. That individual presumably has no knowledge of the complicated role they have played in American history.

McCorvey, of course, did know. She might not have a famous name, and her death will get little coverage in a media obsessed with Donald Trump. But her legacy continues to have a deep and consequential impact on American life.

RIP.

The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.

The Fourth Branch of Government

Over two centuries ago, James Madison, writing in The Federalist No. 47, recognized the danger of an unchecked administrative state. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” And now, step by incremental step, the “fourth branch of government” is making Madison’s fears into reality, abetted by the other constitutional branches of government.

Administrative agencies (such as the IRS, EPA, SEC, and numerous other members of the “alphabet soup”) are nominally housed within the executive branch of government, delegated authority by the president to enforce the law within their respective fields. No clause of the Constitution allows for a delegation of authority to this degree, or addresses the fact that many federal agencies venture far outside their original jurisdictions in their prosecution of ordinary citizens.

The legislature, meanwhile, often leaves holes in the bills it passes, purposeful absences of detail that the administrative agencies often fill with rules and regulations of their own design. If this is not lawmaking or legislating, what is?

And the judiciary? It has willfully abandoned its duty to enforce the Constitution and the strict letter of the law, primarily by refusing to even interfere in the daily happenings in executive-branch agencies except in extreme circumstances. Often the courts, including the Supreme Court, merely decline to hear certain types of cases, other times, they actively defend the right of agencies to follow their own rules and hold their own hearings against those they have accused of violating federal regulations, without possibility of judicial appeal. The Supreme Court even ruled in the case of Chevron v. Natural Resources Defense Council (1984) that “courts should defer to agency interpretations of such statutes unless they are unreasonable.”

It takes little imagination to realize what James Madison and the other Founders would have made of that particular argument, or the entire sorry state of federal administrative law.

Congress should do more to fix this normalization of administrative tyranny, and indeed has been doing more. Current law provides Congress with the ability to repeal recent regulations, a power it has been exerting heavily as of late. The REINS Act, which would expressly forbid future major regulations unless first approved by Congress, has also been steadily progressing through the legislature. And it may be possible for the Chevron doctrine, as it is known, to be effectively repealed by law without need for further judicial intervention.

But the final way to halt and reverse the growth of the fourth branch of government will require the three constitutional branches to work together. The President must nominate, and the Senate must confirm, dedicated originalist judges who will be unapologetic in fighting “independent agencies” whenever such a case does arise. Railing against the administrative state is not sexy. It will put many voters to sleep, not rouse them to action. But in the long term, increasingly powerful and unaccountable agencies run by faceless bureaucrats are just as much of a threat to the Republic as the latest Trump “Muslim ban” or Supreme Court attempt to mandate legalized gay marriage.

Stare Decisis is Ridiculous

Imagine that you make a mistake, one you only find out about later. It could be anything—maybe you installed a new shelf sloppily, and only later noticed that it was tilted.  Or maybe your wife asks you to pick something up from the store, and it’s an hour before her words actually register. Do you act to fix your mistake, or do you decide to just live with an angry wife and useless shelf?

If you’re like most people, you act to fix the mistake, and the quicker the better (hopefully before the wife comes home and finds out that you never went to the store). But the Supreme Court’s often strict adherence to the principle of stare decisis—the power of binding precedent—is sometimes like seeing a mistake and willfully refusing to act to make it right. In the Court’s case, however, this refusal to act can over the long term actually hurt the constitutional foundations of the country.

This approach may be, as Justice Scalia once said in a different context, pure applesauce, but it is largely the way the Court has functioned for at least the past century. All courts are notoriously reluctant to overturn established precedent, but the Supreme Court has gained particular notoriety for its reluctance to overturn older decisions, even bad ones which a majority of justices are readily willing to admit are bad. It is one of a number of reasons the Court took more than fifty years to overturn the judicial endorsement of “separate but equal” facilities for blacks and whites (first articulated in the 1896 case of Plessy v. Ferguson, and not overturned until Brown v. Board of Education in 1954).

And if the justices do actually decide to overturn one of their prior rulings, every law student knows that they must be allowed to reach that conclusion on their own. Judges hate being told that they made a wrong decision, even if that fact is self-evident to everyone, including the judges themselves. The easiest way to win a case is to argue it within the framework of existing precedent, and allow the judge or judges in question to reach their own conclusions regarding precedent. Judges, and justices, hate being wrong, and they hate other people pointing out that they were wrong even more.

This is stupid. Nearly anyone with even minimal political engagement can think of some Supreme Court precedent that they believe should be overturned, and the arguments for some are more convincing than others (looking at you, Roe v. Wade). But beyond anyone’s ideological vendettas against certain cases, it’s just silly that the Supreme Court should be so resistant to overturning bad precedent, no matter the length of time elapsed. In fact, if that particular case has been on the books for a long period of time, and a wide range of people agree that it was a bad decision, even more reason for acting quickly, before it damages the country even more.

A rejection of the traditional judicial deference toward precedent is not lacking on the current Court—Justice Clarence Thomas has often argued for a less servile attitude toward past opinions. Hopefully more justices will join his more realistic attitude toward the Court’s work in the future, including Neil Gorsuch.