Category Archives: The Constitution

Looks like I’ll be writing in Khizr Khan in November

Right now I’m leaning towards writing in Khizr Khan for president in November. He gets it better than the two clowns currently running. ‪#‎YesWeKhan‬

He walked onto the convention stage Thursday night with his wife beside him, the Constitution to guide him and the pride of a father who knows he has a story to tell. “Tonight,” said Khizr M. Khan, “we are honored to stand here as the parents of Capt. Humayun Khan, and as patriotic American Muslims with undivided loyalty to our country.” That was the beginning of a 7-minute speech that became an instant sensation—eloquent, emotional and notably original, coming as it did at the end of four days of highly processed political cliche. Khan, a 66-year-old immigration lawyer from Charlottesville, told the story of his son’s death in combat in Iraq, but he turned that elegy into a viral rebuke of Donald Trump: “You have sacrificed nothing!” The story of how Khan, who is not even a registered Democrat, came to be standing on a stage where Hillary Clinton would moments later accept the nomination for president, began on June 8, 2004, the day his son was killed by a car bomber in Baqubah.

In 2005, Khan talked about his late son to the Washington Post. He recounted the family’s journey from Pakistan to the United Arab Emirates, and from there to Boston, where Khan completed his L.L.M at Harvard University. The family moved to Maryland in time for Humayun to go to high school. Even back then, Khan told the Post, Humayun “was the middle one, the comforter, the one the cousins would run to when they were being picked on. He gave swimming lessons to disabled children in high school.” This sense of responsibility for others showed up again when Humayun joined the Army after graduating from high school. Humayun finished his four years of service and was preparing for law school at the University of Virginia when the Army called on him to serve in Iraq. He died there, four months after his arrival. Seeing a car speeding at his men, he ordered them to take cover. He took 10 steps toward the vehicle before it exploded. He was posthumously awarded the Bronze Star and Purple Heart.

In an interview he gave the San Francisco Chronicle two days before his speech, he said, “Nowhere but in the United States is it possible that an immigrant who came to the country empty-handed only a few years ago gets to stand in front of patriots and in front of a major political party. … It is my small share to show the world, by standing there, the goodness of America.” The Clinton campaign offered to put him in contact with a speechwriter. He declined. He knew what he wanted to say. He practiced at home with his family, leaning on 40 years of experience as an attorney that taught him “how to control my thoughts, my emotions and my message.” On the day of the speech, he grabbed his worn copy of the Constitution and slipped it in his jacket pocket. He carries it regularly, especially when he travels. “It’s my favorite document.”

The Khizr Khan speech was powerful and beautiful. The kind of speech you would have seen at a GOP convention in the Bush era, but not the Trump era. What a remarkable family. Proud that they’re Americans.

When Capt. Humayun Khan was ordered to Iraq a dozen years ago, his father wanted to talk to him about being an American Muslim soldier sent to war in a Muslim country. His son, though, was focused only on the job at hand. “I asked him, ‘How do you feel about the whole Iraq deal?’ ” recalled Khizr Khan, who became a United States citizen after emigrating from Pakistan in 1980. “He said: ‘Look, that’s not my concern and that’s not my pay grade. My responsibility is to make sure my unit is safe.’ And that’s all he would talk about, and nothing else.” Captain Khan, 27, died on June 8, 2004, after he told his men to take cover and then tried to stop a suicide bomber outside the gates of his base in Baquba.

If restrictions on Muslim immigration had been in place decades ago, Mr. Khan said, neither he, a lawyer with an advanced degree from Harvard Law School; his wife, Ghazala, who taught Persian at a Pakistani college before raising three boys in the Washington suburbs; their eldest son, Shaharyar, who was a top student at the University of Virginia and a co-founder of a biotechnology company; nor Captain Khan, who posthumously earned the Bronze Star, along with a Purple Heart, for saving the lives of his men, would have been allowed to settle here…Mr. Khan said he admires both Ronald Reagan and Barack Obama, though Thomas Jefferson is his real hero.

After their son’s death, Mr. Khan and his wife, who had moved to Charlottesville to be close to their other sons, had the university’s R.O.T.C. cadets over for dinner once a year. Mr. Khan would give them each a pocket-size copy of the Constitution, just like the one he brandished on Thursday, said Tim Leroux, who used to run the R.O.T.C. program. University officials let Mr. Khan read an application essay his son wrote for a residential college. In the essay, Captain Khan wrote of how “liberty requires vigilance and sacrifice” and that those who are “beneficiaries of liberty must always bear this in mind, and keep it safe from attacks.”


And of course Trump had to take the bait, of course, and bash the grieving family of a dead American hero. What a disgusting, despicable little man. 

The Khan family champions the classical liberalism this country was founded on, passes out pocket Constitutions (and has made them a best-seller since his speech) to college students, rejects the illiberalism of the vast majority of the Islamic world, and lost a son who died saving American soldiers. Trump couldn’t quote from the Constitution if his life depended on it, rejects the classical liberalism of the founding, wants to make enemies of our Muslim allies who we need to fight ISIS, has sacrificed nothing and has equated fighting in combat for your country to not getting gonorrhea. So yeah, I’m on ‪Team Khan‬. Proudly.

By the way, this is how a real man behaves around the parents of soldiers. I miss the days when the GOP nominated real men. Anyway, I’ll rant more about Trump in another post. Want this one to remain more positive. So, returning to a “restore faith in humanity” moment for the ending: Local news says lots of people have been visiting Captain Khan’s grave this week at Arlington National Cemetery.

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On Scalia, the Left, and the Constitution

First of all, a tribute to the man, one of the greatest legal minds and defenders of our Constitution of all time, and a passionate patron and defender of the arts. When you have this many liberals mourning your death and praising you as a good man who made them think, even if they vehemently disagreed with you, you must have been doing something right. There are many touching tributes from his former law clerks, as well. He lived a life of consequence and kindness and will be greatly missed.

And now, onto the absurdity on display this week. As we are always reminded whenever anything SCOTUS comes up, there’s nothing the Left is dumber on than American history and the Constitution. President Obama won an election. GOP senators won elections. Obama can nominate whoever he wants to SCOTUS. GOP senators can withhold consent if they want. The end. The Senate doesn’t even have to hold a vote if they don’t want to. This is how it works, as Senator Obama well knows. If Cruz is POTUS, Dems hold the Senate, and Ginsburg dies in the last year of Cruz’s presidency, you’ll die to prevent him from appointing her successor. So shut the fuck up already, Dems. This is how it works and you know it. Stop playing dumb. History did not begin in 2008. Read the Constitution. Obama has the right to veto bills for any reason or no reason, and the Senate has the right to veto all his nominees. This is checks and balances 101. You were supposed to have learned this in 5th grade. The process used to be much less politically charged back when the government – and therefore the Court – wasn’t so involved in our lives. But Democrats have expanded government into every aspect of our lives and relentlessly politicized the judicial appointment process over the last quarter century, so here we are. Payback is a bitch.

Sadly, as David Harsanyi notes, precedent only matters to Dems sporadically.

Democrats were uninterested in historical guidance when they were shoehorning a massive generational reform through Congress without any consensus for the first time in history or filling imaginary recess appointments.

Kevin Williamson correctly writes, these are your rules, Democrats. And now the other side is going to play by them too.

Jim Geraghty is right to point out that Republicans need make no argument other than the ones Democrats such as Charles Schumer were making at the end of the Bush years. They need do nothing more than Senator Barack Obama did in filibustering Sam Alito. There are plenty of other examples. The ur-example, of course, is the case of Robert Bork. The Democrats’ craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution.

Bork’s “ideology,” like Scalia’s, consisted of a belief that the law saws what it says and nothing more. Scalia often is described as a “conservative,” but he was a “conservative” who sided with flag-burners, because that’s what the law demands, and with various and sundry unattractive criminal defendants, because the law was on their side, too. He treated the First Amendment the way he treated the Second: as a series of words with a particular meaning.

The Kagans, Sotomayors, and Ginsburgs of the world operate under no such restraints…The belief that the Constitution says whatever it is that Democrats want it to say at any given moment is illegitimate as a legal philosophy for Supreme Court justices. Democrats long ago established that ideological disagreement is a perfectly valid reason for blocking a Supreme Court appointee. Senator Schumer spelled out the political case for preventing a lame-duck president from filling a vacancy. Senator Obama demonstrated the technique. Your rules, gentlemen. Your rules.

Pascal-Emmanuel Gobry expounds on the Left’s hypocrisy and Constitutional illiteracy here:

But conservatives have a long memory and one reason why they’re playing the world’s smallest violins to Democrats’ complaints about fair process when it comes to judicial appointments is because this whole acrimonious vendetta process started in 1987 — with Reagan’s nomination of Robert Bork to fill a Supreme Court seat — when Democrats orchestrated an unprecedented smear campaign against a respected constitutional scholar…The demagoguery was so intense that it became a verb, “borking,” to intentionally and maliciously destroy the character of a nominee for political reasons. And it’s the borking precedent that has made the Supreme Court appointment process so broken. So conservatives have no patience with progressive crocodile tears about constitutional process and playing politics…Here’s the reality of the issue: The Republicans want one thing, and the Democrats want another. And so they are having a political fight about it. And because this is an issue on which the stakes are extremely high, Republicans are willing to fight very hard. And so are Democrats. And so they are fighting. There’s nothing about that that’s against the Constitution. In fact, it’s the opposite: It’s precisely what the Constitution encourages.

David French explains why Republicans – as a party – would be foolish to give up this fight:

Each senator swears that he or she will not only “support and defend” the Constitution, but that they’ll “bear true faith and allegiance to the same.” Voting to confirm any nominee who will likely affirm and advance our nation’s dangerous, post-constitutional drift is a violation of that oath. Each branch of government is tasked with defending our Constitution, and it is past time for Senate Republicans to step up…In fact, the conservative argument for waiting until after the next election is painfully easy to make. A child could counter leftist talking points with one name — Robert Bork. In 1987, the Democratic party crossed the Rubicon when they not only rejected a highly qualified conservative Supreme Court nominee, they did so in the most shameful way possible — through an avalanche of lies and character assassination…The Democrats have proven that they will not only reject a judicial nominee on the basis of politics, but that they’ll lie relentlessly to do so. They still look back on Bork’s nomination battle as a triumph of the progressive movement. A Republican party that cannot use that precedent to justify a far-more-temperate response to an Obama appointee is a party that’s lost any shred of political competence.

In this battle, Republicans have the Senate majority, the lockstep support of an energized base, the Constitution, and the better political argument. If the GOP can’t hold the line under those circumstances, then its Senate majority will be the least of its concerns. The GOP coalition — already strained to the breaking point by Donald Trump’s challenge — may well shatter apart. The GOP as we know it could cease to exist, killed not by electoral defeats but by its own cowardice and incompetence. Fight well, GOP. Your institutional life is at stake.

Here are five reasons Republicans shouldn’t fear a SCOTUS fight; here’s an analysis of why the GOP can and should prevent Obama from replacing Scalia; Ross Douthat makes an important point in his piece, “The War After Scalia”:

This is plausible-enough in a historical vacuum, but it collapses if you understand how conservatives regard their experience with Supreme Court nominees. Since 1968, the year that the modern right-of-center political majority was born, Republican presidents have made twelve appointments to the Supreme Court; Democratic presidents have made just four. Yet those twelve Republican appointments, while they did push the court rightward, never delivered the kind of solid 6-3 or 7-2 conservative majority that one might have expected to emerge. Instead, John Paul Stevens, David Souter and Harry Blackmun all went on to become outspoken liberals, Blackmun and Anthony Kennedy went on to author decisions sweeping away the nation’s abortion laws and redefining marriage, Sandra Day O’Connor and Kennedy both ratified Roe v. Wade — and so on down a longer list of disappointments and betrayals.

Meanwhile, none of the four recent Democratic appointees, whether “moderate” or liberal, have moved meaningfully rightward during their tenures…So telling Republicans that they should accept a moderate liberal lest they risk a real liberal is likely to inspire a bitter chuckle, since from the perspective of conservatives they risk at least a moderate liberal in practically every appointment anyway…And if you’re starting from that kind of disadvantage, you simply can’t afford to throw away even a chance at appointing a real conservative in the name of a play-it-safe compromise: If there’s one thing conservatives have learned from forty years of judicial appointment battles, it’s that when you compromise, you lose.

Shannen Coffin improves on Douthat’s point about the myth of the ‘consensus’ candidate:

Taken for granted in the liberal–conservative split on the Court is that the liberals do not generally fracture. On the most controversial cases, they are one…Another reliable liberal would move the Court solidly into the liberal camp. No longer would there be a question of whether a swing justice would break with the liberals or conservatives on the Court. Instead, the wish list of Democratic decisions — overturning the individual right to bear arms, regulating political speech, redefining property rights — would all be realized. And that is what this fight is all about.

President Obama is not interested in appointing a candidate who would be “gettable” by conservatives in any given case. The president wants to appoint only someone who would appear that way for purposes of the Senate confirmation process. Rather than Goldilocks, we’d get instead the Big Bad Wolf in sheep’s clothing. United Republican opposition should not come as a surprise in this case. Whoever the nominee is, he or she will not, by the president’s design, be acceptable to those devoted to the Constitution and the rule of law. The objective here is to make the Court a dependable supporter of the Democratic policy agenda for the next generation and beyond. Goldilocks is a fairy tale.

Let’s finish with this fantastic Kevin Williamson piece:

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?

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. Likewise, conservatives who were inclined to ride roughshod over the rights of criminal defendants and Americans deemed “enemy combatants” by the president often ran into the brick wall of Scalia’s jurisprudence. Not because criminals and jihadists had a friend in Scalia, but because they have a friend in the law, to which he was committed.

The discussion surrounding Scalia and the fight over his replacement treats Scalia’s philosophy — that the law says what it means and means what it says — as though it were exotic, or as if it were a quaint relic of some simpler age. But what is the alternative? The alternative is to make the Supreme Court a nine-person mob in a mob-rule society. We already are dangerously close to that point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer will find a way to produce the outcome that the Left desires in any important case.

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Video of the Day

As usual, Charles C.W. Cooke says it best:

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Filed under The Constitution, Video of the Day

Your Morning Cup of Links

Ted Cruz, Natural Born Citizen

White House continues purge of high-threat detainees from Gitmo while obfuscating increase in numbers detained on terror charges

“It means giving up the fond illusion that Germany’s past sins can be absolved with a reckless humanitarianism in the present. It means that Angela Merkel must go — so that her country, and the continent it bestrides, can avoid paying too high a price for her high-minded folly.”

This sounds awful.

In addition to classified info breaches, the FBI is reportedly exploring a public corruption probe against Hillary.

Review: Saint Aldhelm’s Riddles, translated by A. M. Juster

Picasso’s granddaughter is selling her private collection at Sotheby’s

“Let’s make young Han Solo look like some ladyboy in a boy band!” – idiots

Visit these 10 sites celebrating major anniversaries in 2016

First Israeli F-35 begins production in Fort Worth

1715 multicolored Hadley chest could fetch $500K at auction

Melting pots and critical masses

If people from the old country keep streaming in, you tend to hang out with them instead of mixing with the culture at large. Both of these reasons support the conclusion that restricting immigration benefits both immigrants and the native-born…In 2007, Zhenchao Qian of Ohio State and Daniel T. Lichter of Cornell found that over the course of the 1990s, the percentage of Asians marrying whites, and Hispanics marrying whites, fell sharply, a development they attribute to rising immigration. As the size of an ethnic group increases, in-group contact and interaction increases. This in turn strengthens in-group ethnic solidarity while reducing intermarriage.

Astronomers to image event horizon of a supermassive black hole in groundbreaking bid to prove general relativity

Good column on why the Friedrichs case (argued the other day before SCOTUS) is so important

What a dumb time to be alive

Democrats invite Muslim Brotherhood front/friends of Hamas to the SOTU

Speaking of the SOTU, here’s your annual reminder that it’s is the most disgusting display in American political life. “Here’s a better idea for an unconventional State of the Union address: Don’t have one.” In case you decided to be a hero of the republic and skip it last night, just know that Obama made the same dishonest, straw-man laden speech as always.

This will end well.

YES. Thank you Liz Mair, for filleting this fraud.

It’s over, Donald. “Most patriotic Americans stop playing soccer at around age nine, because it’s lame and rewards weakness. It’s also very popular in Mexico.”

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Afternoon Links

“Donald Trump may talk like a brownshirt, but the Democrats mean business.”

Good summation of why I’ve become less enthusiastic about immigration, here and here.

The President failed to acknowledge that it is the principles of limited government and individual rights that make United States a welcoming place for immigrants because they assure that newcomers cannot tip the political balance to make life worse for those already here. Instead, the President celebrated the raw power of democracy to make “progress,” change that can come at the expense of long time residents

While the President’s speech was meant to make new immigrants feel immediately at home, the political dynamic that he extolled explains why many Americans fear immigration. If the Progressive agenda can erode the original meaning of the Constitution, immigration creates political risk for the current citizens. If new voters can help elect administrations that will trample on property rights and expand federal power to transfer resources, some current Americans will be made worse off. If these new voters become part of a coalition of racial and ethnic minorities to demand preferential treatment, many Americans will worry for their own children’s future.

The dissolution of restraints on government naturally creates polarization over immigration because it allows people to view newcomers as potential voters who may impose exactions on others rather than as citizens in a commercial republic who will promote the general welfare through their individual pursuit of happiness.

“What will the future bring? The answer depends on whether the West still believes in anything.”

Charles C.W. Cooke explains the Bill of Rights to Doug Gottlieb and other constitutionally illiterate progressives.

Why would a dissolute rebel like Paul Gauguin paint a nativity?

“It is secular creationists whose social costs are steep.”

George Will hones in on one of the many things I don’t get about Trump supporters. What the hell do they see in him? He has no redeeming qualities. He’s a completely pathetic figure.

If you look beyond Donald Trump’s comprehensive unpleasantness — is there a disagreeable human trait he does not have? — you might see this: He is a fundamentally sad figure. His compulsive boasting is evidence of insecurity. His unassuageable neediness suggests an aching hunger for others’ approval to ratify his self-admiration. His incessant announcements of his self-esteem indicate that he is not self-persuaded. Now, panting with a puppy’s insatiable eagerness to be petted, Trump has reveled in the approval of Vladimir Putin, murderer and war criminal.

Shithead kids with horrible parents ruin everyone’s day

Probably true. They have similar positions on most issues.

Seventh time’s the charm

$400 to hang out at Olive Garden on New Year’s Eve. Kill yourself.


I love this story.

Eight of the top 20 selling books on Amazon currently are coloring books for adults.” Sounds like a country that deserves a Trump presidency.

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Filed under Art, Politics, The Constitution, The Left, Uncategorized

Your Morning Cup of Links

“They Helped Erase Ebola in Liberia. Now Liberia Is Erasing Them.”

Researchers study the art critic in our brains

Water Bears Are the Master DNA Thieves of the Animal World

“When it comes to Donald Trump, I hate everyone”

I bet most American women don’t know that the Feminist Sisterhood probably just signed them up for the draft.

What a dumb time to be alive

A man is actually suing the Metropolitan Museum of Art in New York for exhibiting masterpiece paintings of Jesus Christ because Jesus is white and blond in the paintings — and that is racist. Justin Renel Joseph has filed a lawsuit in the Manhattan Supreme Court alleging that the Civil Rights Act of 1964 demands that the four paintings be removed, according to an article in the New York Post. “They completely changed his race to make him more aesthetically pleasing for white people,” he told the Post. “I’m suing a public venue which by the Civil Rights Act of 1964 can’t discriminate on a protected basis.”

Joseph said that seeing a white Jesus in Ricci’s “The Holy Family with Angels,” Perugino’s “The Resurrection,” Tintoretto’s “The Miracle of the Loaves and Fishes” and Granacci’s “The Crucifixion” caused him “personal stress.”


Unreal. Do these fucking dummies know that the Attorney General of the United States is named Lynch? Should she resign so they don’t feel “microaggressed”?

Frank Sinatra was the greatest singer of American songs

“The first of the book’s million microaggressions is its embrace of the notion that males are a unique kind of person and not just females who stand in the bathroom.”

The Constitution is not incidental

The problem is that the elite modern left thinks all these things which are essential to the American experience are just incidental. They see no connection between Constitutional freedoms and the character of the people; between religious liberty and church attendance and family breakdown; between gun ownership and self-reliance and respect for property; between crushing free speech and destroying our capacity for free thought and creativity; between the loss of American stoicism and the all-encompassing welfare state. They see these originating factors as irritants or unimportant, and think they can all be gotten rid of without fundamentally altering the nature of who we are as a nation.

The liberal elites do this in part because such things are incidental to their own daily lives. Casting aside the Bill of Rights won’t fundamentally change who they are, at least not in any near term. So because you do not use guns, you don’t care about people who do, and you cannot understand why they would ever need or want such things. Same with church. Same with awful public schools, in neighborhoods you would never live. Your tribe of social justice warriors who left the campus will be just fine, so long as the government isn’t threatening gourmet coffee shops or wifi access or prestige cable dramas.

Media jumps the gun (shocking, I know), attacks Justice Scalia for perfectly reasonable question

Brush up your Shakespeare: Read the complete works in a year

How the Left created Donald Trump

The allure of literary anonymity

The constitutionalist and legalist streak in the Republican party is a good thing. It’s a shame that some are abandoning it.

Rick Perry nailed it then and his words ring even truer now.

This makes me so happy. I can’t stop watching that gif and smiling.


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Filed under Art, Literature, Music, Politics, Science, The Constitution, The Left

LOL Nothing matters (SCOTUS round-up)

Well, the rule of law was fun while it lasted. Really excited to see where this new “the law means whatever the party in power (or really just the Left) thinks it means” principle goes. Should be fun. For the past several days we’ve been treated to half a dozen politicians-masquarading-as-impartial-judges in black robes just making shit up in order to fulfill their political goals. It was capped off Monday morning with Justices Ginsburg and Breyer declaring that the death penalty – which is explicitly allowed in the Constitution – is unconstitutional. Fortunately, those two buffoons were in the minority and that case went the correct way. In another case that morning, five justices showed that they don’t know what the term ‘legislature’ means. These are the times we live in now, so I guess we better get used to them. Words have no meaning, there is no objective reality, we just do what we want.

Anyway, going back to the beginning: the travesty that was King v Burwell. Chief Justice John Roberts helped re-write Obamacare during its first time at the Court, and decided to help re-write it again this second time around. Why even pass laws anymore when agencies can simply assert the opposite meaning and the Court will allow the re-write because well, perhaps that’s what they really meant to say? NRO explains:

The text of the law authorizes federal subsidies on health-insurance exchanges “established by the state,” but does not authorize them on exchanges established by the federal government. Since most states have not established exchanges, reading the law the way it was written would limit the law’s reach. The administration therefore decided not to do so — and the Court has blessed its decision, and barred future administrations from revisiting it.

His point is that in the absence of subsidies, the law’s regulations would destroy insurance markets. Congress, he writes, could not have intended for the law to have this effect. But the question of what Congress intended in the absence of widespread state cooperation with the law is surely the wrong one to ask, since there is little evidence that Congress ever considered the topic.

Scalia’s dissent is, of course, amazing. As John Daniel Davidson writes, and I can’t emphasize enough, this is really bad for the rule of law going forward. I’m not even that mad about what this means for Obamacare. I think it will fall on its own anyway and I always assumed the spineless GOP was going to save the damn subsidies no matter what. But this sets a really bad precedent for a nation that is supposed to be of laws, not men:

The Supreme Court ruling in King v. Burwell affirms a philosophy of governance fundamentally at odds with the meaning and purpose of the U.S. Constitution and the ideals of America—that we should be a nation ruled by law, not by men, still less by unelected bureaucrats in Washington, D.C. The decision, which preserves subsidies for health insurance on exchanges set up by the federal government in 34 states, amounts to a repudiation of the constitutional principle of separation of powers in favor of rule by an administrative bureaucracy.

Scalia and his fellow dissenters (Justices Alito and Thomas) rightly believe the consequences of Burwell are far-reaching. No longer must elected representatives pass actual laws. It’s enough, now, for Congress to express a desire for a policy outcome and leave the details to an unelected bureaucracy—even when those details involve billions of dollars in taxes and spending, strict mandates and penalties, and government control over vast swaths of the economy. Such a shift bodes ill not just for the opponents of the administrative state but also for the Court, which will henceforth be seen—if it is not already—as yet another partisan branch of government.

The other garbage opinion of last Thursday (arguably even worse than King), was Kennedy’s laughable disparate impact decision. Read about the history of disparate impact here and the decision in a nutshell is described here:

The Supreme Court last week ruled 5-4 (Justice Kennedy writing the majority opinion, joined by the four liberal justices) that “disparate impact” claims may be brought under the Fair Housing Act. The court’s decision fails to follow the clear language of the statute, and it will encourage race-based decision making in the housing area — exactly what the Fair Housing Act was meant to prohibit. Here’s why. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color or national origin, but also religion, sex or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent and in its application. The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.

Disparate impact has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession. The disparate-impact approach pushes potential defendants to do one or both of two things: Get rid of perfectly legitimate selection criteria or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right. In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin. And the fact of the matter is, there is probably no selection criterion — not a single one — that does not have a disparate impact on some group or subgroup.

So, have fun getting sued whether you meant to discriminate or not, local governments, lenders, and those in real estate! Thanks Justice Kennedy!

The following day we were treated to more of Kennedy’s nonsense in a majority opinion that was, as David French put it, “nine parts romantic poetry and one part legal analysis (if that).” Let me just preface my rant by saying I’m not upset that gay people are going to be able to get married. I’m happy for my gay friends. I don’t buy the “this will ruin marriage” argument. Straight people ruined it long ago (starting with no-fault divorce). I’m upset at Kennedy’s poorly reasoned, nonsense opinion and the death of federalism. Kennedy’s reasoning is basically: “I like marriage and I like gays and the two together sound like PB&J to me! Let’s do this!” This was an act of will, not legal judgement. It was not the Court’s decision to make. The Constitution says nothing about marriage, and no, the framers of the 14th Amendment (which was about slavery) did not intend it otherwise. The Court overstepped its role (which sets a bad precedent for the future) and didn’t do its job in applying legal reasoning to legal questions. Furthermore, this “Love Wins” stuff is nonsense, as Ace points out here. The state’s interest is not in “love” – the state ignores lots of “loving relationships” – but in the production of children, and state-sanctioned same-sex marriage is therefore nonsensical. I would rather the state get out of marriage altogether, but that’s not going to happen. I think a good solution would be civil unions/private contracts and leave marriage to the church, but that ship has sailed.

I recommend reading all four of the dissenting justices to understand why this is such a terrible decision. Let’s start with a couple excerpts from Chief Justice Roberts, who is a totally different man in this dissent than the one who wrote the King opinion:

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.…

LOL THIS FUCKING GUY. Yesterday the Court was a legislature, today it’s not. GTFO. Moving on…

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges…When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate…But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.…

Justice Alito’s dissent perfectly captures my main concern with this decision:

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Justice Thomas shows why he is my favorite justice:

Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic…Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.…

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.…

“Liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrow than that, encompassing only freedom from physical restraint and imprisonment.

Scalia’s dissent is, of course, awesome. You should go read it. I was going to talk about my concerns for religious liberty and conscience rights going forward, since the Left can’t take ‘yes’ for an answer and is in no way going to stop here, but this post is long enough already. I’ll save that for a different post. I’ll leave you with links and brief excerpts of two excellent pieces at NRO. First, Andrew McCarthy notes that there is never any doubt about which way the “liberal” justices will vote:

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote? There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation. How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory. But not the Court’s lefties, not on the major cases. And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable. But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution. That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.

Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law…But we are a nation of will, the will of a determined political movement, so the law never had a chance. The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor. But none of it is about the law, or even expected to be. That time is gone.

And here’s Kevin Williamson eviscerating Roberts:

In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want. That texts may be imaginatively interpreted to any end is not news — “The devil can cite Scripture for his purpose,” as William Shakespeare observed in The Merchant of Venice. The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea, but, to be fair, that is an easy provision to overlook, even for a mind as keen as Barack Obama’s, since the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right.

The gentlemen who wrote the Constitution did not get around to enfranchising women or abolishing slavery, but they snuck in a constitutional right to gay marriage that we’ve somehow overlooked for 228 years or so: No mentally functional adult, regardless of his views on gay marriage, should be expected to pretend that that is true. I am in favor of arranging the laws to permit gay couples to arrange their domestic affairs in whatever way they see fit, and to have those affairs blessed by whatever authorities are inclined to bless them…it’s a free country, Sunshine. Unlike Barack Obama, I did not arrive at my views on same-sex affairs recently and at a moment of political convenience. But, that being said, the idea that lurking in the penumbras of our 18th-century Constitution is a fundamental national right to gay marriage is simply preposterous. It is not there.

We know that the Court’s liberals are going to vote one way, that some of its conservatives will probably vote another, and that John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95. That the chief justice went one way on health care and another on marriage tells us nothing at all about the law or the Constitution: It tells us about John Roberts. And that is the problem. Asked what he thought about Western civilization, Mohandas K. Gandhi supposedly quipped that he thought it would be a good idea. Conservatives, if we’re being honest, might say the same about the rule of law. It would be a good idea, at least an interesting experiment. For the moment, though, there’s only power, the men who have it, and the things they do with it.

Anyway, happy for my gay friends and will be happy for the polygamists when they get granted their new Constitutional right, too. Not happy we are living in a country in which federalism is dead and everyone is forced to live under the whims of a small majority.

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