The Supreme Congress: How Democrats Want to Make America an Oligarchy

By Aaron Kliegman Sen. Amy Klobuchar (D-MN) is a moderate, someone with a practical, bipartisan approach to politics. At least that’s what the media tells us. This is what Klobuchar thinks about the death of Ruth Bader Ginsburg and President Trump’s intent to replace Ginsburg on the Supreme Court: “Literally, our democracy is at stake.” In other words, the American experiment in self-government is on the brink of collapse. How our republic, the strongest and wealthiest country in history, was only being held up by a single 87-year-old woman, Klobuchar does not say. Remember, this is a supposed pragmatist. And what about other Democrats? How have they and prominent figures on the political left responded to Ginsburg’s death? Well, maybe Klobuchar is a moderate after all. CNN anchor Don Lemon wants “to blow up the entire system” and “stack the courts” with left-wing ideologues. Reza Aslan, a former employee at CNN, similarly says he’ll “burn the entire f***ing thing down” if the president and Republicans even try to replace Ginsburg. Aslan also warns that President Trump’s nominee will receive a vote on the Senate floor “over our dead bodies. Literally.” Democratic California Gov. Gavin Newsom’s chief of staff, Ann O’Leary, seemed to get the memo. “While I am not radical,” she tweeted, “I am ready to fly to DC in the middle of COVID-19 and lay my body on the floor of the United States Senate to prevent a vote from occurring before the next term of Congress.” At least she’s not radical. According to Rep. Alexandria Ocasio-Cortez (D-NY), however, she should be. “Let this moment radicalize you,” Ocasio-Cortez said of Ginsburg’s death on Instagram. “This is not over. We win in November, I’m sorry to tell you, you’re not going back to brunch. We’re not going back to brunch.” Ocasio-Cortez added during a press conference with Senate Minority Leader Chuck Schumer (D-NY) that Senate Republicans are “playing with fire” by moving forward with President Trump’s nominee. Let’s be clear: That’s a threat. Why all the panic and outright madness? Ocasio-Cortez gave us the answer during the same press conference. “It’s extraordinarily important that we understand the stakes of this vacancy,” she said. “Our reproductive rights are on the line. Our labor rights are on the line. Our right to health care is on the line … With an early appointment, all of our rights, the rights that so many people died for … are at risk.” Schumer also gave us the answer, adding that President Trump’s nominee will worsen climate change. “We’re here to protect the rights of our globe and the people who live on it so that climate is protected,” he explained. “A court with the kind of nominee President Trump will choose will undo all of that.” The Senate’s top Democrat continued that whoever the president nominates to the high court will make global warming “more likely” and “come quicker.” So, again, why the hysteria from Democrats and the left? As Schumer and Ocasio-Cortez make clear, they see the Supreme Court not as an independent judiciary but as a legislative body, another place to make laws and impose policy. The court is a political tool to achieve political ends. It’s about power, not the Constitution. And Democrats fear that, if the Supreme Court has more conservative justices, then their progressive agenda could be set back years, even decades. Democrats will, of course, nominate judges and academics who share their view of the Supreme Court, and Republicans recognize this fact. Hence, the process of nominating justices to the Supreme Court has become a politicized circus — one that now brings out even uglier politics than presidential elections. Just ask Brett Kavanaugh. In truth, though, the Supreme Court has become the supreme political battleground because of the justices themselves — including ones appointed by Republicans. Historically, justices practiced textualism when interpreting law. In his 2012 book, Reading Law, the late Antonin Scalia outlines what textualists believe. “In their full context, words mean what they conveyed to reasonable people at the time they were written,” he writes. To account for new developments, textualists give legal text expansive meaning — tweets are part of one’s right to free speech, for example. Because we know all the relevant American history, justices know what the text of the Constitution was understood to mean when it was written. Textualists therefore believe that citizens who want change — such as abolishing the death penalty or legalizing abortion — shouldn’t look to the courts to declare something constitutional or unconstitutional. Instead, citizens should look to Congress and state legislatures, working to pass laws with the support of the majority. That’s how democracies are supposed to work. If the Supreme Court based its rulings on textualism, then each nomination wouldn’t engender such panic. And maybe then Americans would be celebrating Justice Ginsburg’s life today rather than focusing on politics. However, too many members of the high court believe, and have believed for some five or six decades, that the Constitution is a living document that evolves with the times. This judicial activism leads judges to base rulings on what they think ought to be in the Constitution, not what’s actually in the Constitution. And it’s up to the court to give the text new meaning to update whatever outdated purpose it once had. This philosophy fits perfectly with progressives’ understanding of the Supreme Court’s role as a quasi-legislator. Such an approach to interpreting law is the real threat to American democracy, not President Trump’s nominee. The best way to explain how is to provide an example. Consider the death penalty. When the Constitution became effective, every state used the death penalty, even for crimes less severe than murder. Since then, there has been no constitutional amendment banning the death penalty. It is therefore objectively false to say that capital punishment is unconstitutional. Clearly, the Founding Fathers and the American people did not see it as a form of cruel and unusual punishment. And yet, many judges (including some on the Supreme Court) and professors of law believe the death penalty is unconstitutional. By definition, they must come to that conclusion by imposing their own beliefs rather than interpreting the Constitution. Textualists are bound by the text; judicial activists are bound by politics of the moment. The problem with this way of thinking is there’s no limiting principle. Once judges go beyond the text of the Constitution and analyze cases based on modern tastes — what they think society needs today — then there’s nothing to stop them from acting as legislators from the bench. If most justices on the Supreme Court believe in the living Constitution, then America steadily becomes an oligarchy, a country in which nine lawyers employed by the government have ultimate power -- for life. Think about it: If the court can rule as it pleases, then why do presidents and lawmakers matter beyond just nominating and confirming justices? Forget about checks and balances. Forget about separation of powers. Forget about three equal branches of government. The living Constitution destroys democracy in another way. Consider what constitutions actually do: They take certain items out of the democratic process. Even if most Americans and their representatives wanted to ban free speech, for example, they couldn’t, because the First Amendment has removed that option. So, when justices go beyond the original meaning of the text, thereby adding or removing items from the democratic process without applying any standard, objective criteria, they are eroding the foundations of our democracy. As Scalia said in 1996, we have the Constitution “to prevent a future society from doing whatsoever it wants to do … because there are some things which you don't want a majority to be able to change.” And “if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today,” then the Constitution will necessarily die with time. Perhaps Sen. Klobuchar is right to say our democracy is at stake. She’s just saying it for precisely the wrong reasons. Order Newt's Latest Book: https://www.gingrich360.com/trump-and-the-american-future

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