RUTHFULLY YOURS

The sudden death of Justice Antonin Scalia has sharpened the divide between the progressives’ idea of technocratic federal power, and the Constitution’s limited government that Scalia eloquently championed for almost 30 years. This division has a long history that transcends the failed presidency of Barack Obama.

The Democratic Party grew out of opposition to the elitist Federalists, whose president John Adams was known as “His Rotundity” for his girth and alleged aristocratic tendencies. James Madison in 1792 established the contrast between the two parties that persists to this day: the Federalists were “more partial to the opulent,” and believed that “government can be carried on only by the pageantry of rank, [and] the influence of money and emoluments.” Those who would become Democrats, Madison wrote, believed “in the doctrine that mankind are capable of governing themselves,” and he charged that power lodged “into the hands of the few” is “an insult to the reason and an outrage to the rights of man.” In short, the Democrats were about power to the people rather than to privileged elites.

Two centuries later, the Democratic Party still uses the rhetoric of democracy, and castigates the Republicans as the tools of greedy corporations and crypto-fascist plutocrats––“Wall Street” and the “Koch brothers” being the shorthand for this nefarious cabal. Yet in their policies and practices, the Democrats are now the true elitists who have narrowed government “into the hands of the few,” even within their own party. Consider the recent two presidential primaries in Iowa and New Hampshire. In the popular vote Bernie Sanders tied Hillary in Iowa and wiped her out in New Hampshire. Yet Hillary ended up with more delegates––394 to Sanders’ 44. Why? Because there are 712 “superdelegates,” Congressmen, governors, some mayors, and certain party apparatchiks. Each superdelegate is worth about 10,000 of one citizen’s vote. So much for believing “mankind are capable of governing themselves.”

Much more dangerous for the country has been the consolidation and concentration of power in the federal government, and its metastasizing regulatory agencies and expansive presidential reach, a goal of progressive ideology starting with Theodore Roosevelt. Of course, early progressives continued to use democratic rhetoric to mask this undemocratic inflation of the chief executive’s constitutional authority, and their tyrannical assaults on the people’s autonomy and freedom. Roosevelt spoke of the “triumph of a real democracy,” and Woodrow Wilson touted the “sovereignty of self-governing peoples.” Opposed to this “people” were the “sinister special interests” that “beat back the forces that strive for social and industrial justice,” as Roosevelt put it, and the “invisible empire” of “bosses and their employers, the special interests,” in Wilson’s words. Sound familiar?

At its best, the Supreme Court functions precisely as it was intended: as an antidemocratic brake on popular legislative and presidential passions when those passions do violence to the law, the Constitution, and the Bill of Rights. At its worst — and it often has been at its worst of late — it functions like Iran’s Guardian Council, a collection of black-robed faqihs and jurists that sits above and outside the political process, using its position and privilege to impose on the nation a narrow set of social values decocted from the political ether.

With the death of Antonin Scalia and the prospect of replacing him, we are faced once again with the question: Does the law mean what it says, or does it mean whatever people with power want it to mean at any given moment?

Contrary to Josh Barro and others who insist that there is no longer any live issue of principle here, only two competing political factions wishing to use the Court for their own policymaking ends, the question pressed by conservatives is now, as it long has been, what the proper role of the Supreme Court is. Consider the question of abortion. Conservatives have not sought to have the Court act as a super-legislature and enact a federal ban on abortion; rather, conservatives have insisted that the Constitution is silent on the question, that Roe v. Wade is an act of willful judicial imagination, and that the question is properly left to the states and the legislatures.

The habitual labeling of Scalia as a “conservative,” as though he were simply using the Court to do what Jeff Sessions does in the Senate or Ken Buck does in the House, is a libel. As opposed to the outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia often reached decisions that annoyed conservative political activists — because the law demanded it. The Left complains that Scalia was an unthinking “fundamentalist” on the Second Amendment, without taking a moment to consider that he approached the First Amendment in precisely the same way. When conservative legislators wanted to abridge free-speech protections by passing a statute against flag burning, it was Scalia who stood in the way.

It has become an iffy idea to cross Barack Obama. After seven years, the president has created a Hugo Chávez–like deterrent landscape, intended to remind friends and enemies alike that he is perfectly willing to use the federal government’s vast power to go after those he finds politically inconvenient, while exempting those he understands to be sympathetic to his agendas.

In Freudian fashion, Obama has long joked about using the power of government in a personal way. As early as 2009, when he had been invited to give the Arizona State University commencement address but had not been granted an honorary degree, he warned of rogue IRS audits: “I learned never again to pick another team over the Sun Devils in my NCAA brackets. . . . President [Michael] Crowe and the Board of Regents will soon learn all about being audited by the IRS.” Jesting about politically driven IRS audits is always scary — scarier when life imitates art in the age of Lois Lerner.

Remember when Obama, on the Spanish-language Univision network shortly before the 2010 midterm elections, urged Latino groups to join him, in ancient tribal us/them fashion, in going after “enemy” Republicans. Instead of sitting out the election, he told them in community-organizing fashion, they should say: “We’re gonna punish our enemies, and we’re gonna reward our friends who stand with us on issues that are important to us.”

That threat recalled his 2008 campaign braggadocio about urging his supporters to bring (of all things!) “a gun” (“If they bring a knife to the fight, we bring a gun. Because from what I understand folks in Philly like a good brawl”), and “to get in their face” (“I need you to go out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face”).

In such matters as the death of a great man, respect matters — especially from our political leaders. Dignity and sober ceremony are called for. These are not trivial requirements, nor are they mere accessories to the event. They are part of the bedrock of enlightened civilization. Surely when America’s president appeared before the TV cameras Saturday evening to deliver his scripted remarks about the death of a Supreme Court Justice, the great Antonin Scalia, Obama should have taken the trouble to dress at least as well as your average law student applying for a summer job.

Instead, flanked by the flags that signal ceremony, but dressed-down after a day on the golf course, the top button of his shirt undone, Obama appeared without a necktie.

TV commentators, in their instant reaction, focused on Obama’s remarks, which combined a brief eulogy of Scalia with Obama’s marker that — suddenly interested at this late date in the Constitution — he expects to have the pleasure of seeing the Senate confirm whomever he nominates as a replacement, rather than waiting for the next president.

But to my mind, the real statement was Obama’s casual omission of a tie — with the attendant implications of disregard for his own office, for the Supreme Court, for the American people he was addressing, and for the late Justice Scalia, who was extraordinary above all for his dedication to liberty. Which does not figure large on Obama’s agenda.

One can only guess what went into Obama’s sartorial choice for these televised remarks to the nation. Did he have no necktie available? He was speaking from California. Has California run out of neckties? Was no one among his ample staff or crowd of golf buddies able to locate one, during the hours leading up to his televised remarks? Did he put one on and then yank it off at the last minute — which would account for his rumpled collar — having decided it was a tad too formal for a golfing weekend? Were his remarks so inconveniently sandwiched in between golf and dinner that he simply skipped that last touch?

Now that Supreme Court Justice Antonin Scalia has passed away, stories about his true greatness are coming out. The man’s opinions might have been firm, uncompromising, even biting — but his character and heart were surprisingly kind and gracious.

Jeffrey Tucker, director of digital development at the Foundation for Economic Education and “chief liberty officer” at the startup Liberty.me, decided to break silence on a personal story involving Scalia. After church one day, Scalia stayed late to pray, and so did a woman with “lashing sores on her face and hands…open sores.” Tucker recalls “there was some disease, and not just physically. She behaved strangely, a troubled person that you meet in large cities and quickly walk away from.”

When the woman approached Scalia, he didn’t back away, but took her hands and listened to her story.

He held her face next to his, and she talked beneath her tears that were now streaming down his suit. He didn’t flinch. He didn’t try to get away. He just held her while she spoke. This lasted for perhaps more than 5 minutes. He closed his eyes while she she spoke, gripping her back with his hand.

He didn’t recoil. He stood there with conviction. And love.

Tucker kept mum about this story, because “charity is simply a form of love, and genuine love does not seek out public recognition.” Tucker, an outspoken libertarian, said this moment touched him, and proved that power does not corrupt all men. “What I saw that day was the rare exception. Power did not corrupt this man. He remained true to himself and true to his principles.”

Another story came from the opposite side of the aisle. David Axelrod, CNN’s senior political commentator and former senior adviser to President Obama and chief strategist for the 2008 and 2012 Obama campaigns, recalled a surprising request from Justice Scalia. When Justice David Souter retired from the Supreme Court, Scalia supported an unlikely choice — Elena Kagan.

With the untimely death of Antonin Scalia Saturday, President Barack Obama has been handed the opportunity of a lifetime to tilt the Supreme Court to the left for decades to come. It’s also given Democrats an issue to demagogue from now until election day and beyond.

About an hour after Scalia’s death was confirmed, Senate Majority Leader Mitch McConnell “threw down the gauntlet,” announcing that the Senate would not be confirming a replacement for him until after the 2016 election, a move Politico called, “an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.” But there is nothing “historic” or “extraordinary” about challenging “the practice of considering each nominee on his or her individual merits.” Democrats have been blocking judicial nominees based on ideological grounds rather than their “individual merits” for decades now.

Regardless, the president wasted no time in lecturing the Senate about its “responsibility” to give his nominee “a fair hearing and a timely vote.”

“These are responsibilities that I take seriously, as should everyone,” Obama intoned. “They’re bigger than any one party. They are about our democracy. They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned.”

Hillary Clinton issued her own statement in support of Obama on Saturday evening.

“Let me just make one point,” Clinton said, whipping up the crowd at the state Democratic Party event. “Barack Obama is president of the United States until Jan. 20, 2017. That is a fact, my friends, whether the Republicans like it or not.”