THE NEW YORK TIMES PLATFORMS AN ATTACK ON THE REPUBLIC AND HIGHLIGHTS HOW MUCH WE HAVE LOST OUR WAY
OVERVIEW & INTRODUCTION
On August 31st, 2024, book critic and constitutional moron Jennifer Szalai published a piece in the New York Times that posited that the Constitution “was one of the biggest threats to national politics.” Although providing the hollow endorsement that the Constitution was “sacred,” this piece essentially calls for its replacement in favor of the very thing that our Republic was not meant to be. The guarantee of the mob rule of “democracy.” Our current structure of government is intended to ensure that no one of the three branches of government achieves elevation over the other. The Articles of Confederation, which the Constitution was formed to fix, were a failure, and state legislatures had reflected “majoritarian” sentiments in such a way as to threaten individual liberty and trade among the states and, as a result, almost destroyed the nascent America. Unicameral state legislatures reflected the political majority in destructive ways. The following excerpt from the New York Times article captures the depth of the author’s failure to grasp the core purpose of a republic. This is echoed every day as every leftist hack in the country rails against the “threat to democracy” that a Trump government would pose:
“National politics gets increasingly funneled through the judiciary, with control of the courts, especially the Supreme Court, becoming a way to consolidate power regardless of what the majority of people want. This disempowerment of majorities, combined with political gridlock and institutional paralysis outside the judiciary, fuels popular disaffection. The document that’s supposed to be a bulwark against authoritarianism can end up fostering the widespread cynicism that helps authoritarianism grow.”
HORSE HOCKEY
In the words of Colonel Potter, “Horse Hockey.” You see, kind reader, the very goal of the system of separation of powers is exactly to expose the excesses of politics and political expediency to judicial review in order to constrain any given legislature from impairing personal liberties. The term “demagogue” evolved from the very term “democracy” that the Greeks instituted as part of political discourse. James Madison in both Federalist 51 and his work “The Vices of the Political System in the United States” exposed the dangers of the unchecked political majority. Professor Randy Barnett, in his book “Our Republican Constitution,” explores this by examining Madison’s influence on the Constitution. I borrow freely herein and give blanket attribution to this great scholar. Professor Barnett noted that Madison concluded that we must be more realistic about popular majorities. All civilized societies, Madison observed:
“…are divided into different interests and factions, as they happen to be creditors and debtors—rich or poor—husbandsmen, merchants, or manufacturers—members of different religious sects—followers of different political leaders—inhabitants of different districts—owners of different kinds of property. In a democracy, the debtors outnumber the creditors, and the poor outnumber the rich. The larger group can simply outvote the smaller. The majority, however, composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority, or individuals?”
The ”National majority“ that Szalai worships, especially in the context of the notion of the abolition of the Electoral College, illustrates the evils noted by Madison, a man living hundreds of years before her, namely, that in a popular majority setting, the few most populous states with citizens harboring sensibilities that may be totally different from those of other states would control the outcomes of presidential elections, rendering the votes of the populations of the other states illusory. Exactly the result avoided by the republican form of government. The modern political citizen may want the sugar high of, say, a loan forgiveness program, an executive order that tells them to take medicine or lose their livelihood (a majority actually supported this autocratic low point), one that may ban firearms, as well as any politically expedient measure that an out-of-control legislature or executive may foist upon us to stay in power. A majority may wish to limit the First Amendment (no they actually do), ban guns, have an abortion at any time, or get unlimited free stuff without the inconvenience of the separation of powers and judicial review. It is just the judicial review of courts comprised of lifetime appointments, free of political pressure, that is the ultimate check on the unbridled populism of elected officials seeking to curry favor with those who keep them in power. Madison saw this evil in Federalist 51, and the separation of powers became baked into our republican form of government. In Marbury v. Madison, the blueprint for judicial nullification of unconstitutional laws was set by Chief Justice John Marshall with the following ruling for the ages:
“…. It is emphatically the province and duty of the judicial department to say what the law is…”
To the uninformed like this New York Times hack, the Supreme Court only has legitimacy when it rules in conformity with some notion of the will of some amorphous “national political majority” and is subject to abolition or packing when it does not. How dare it preserve and define the Second Amendment or limit, for instance, Obama’s attempt to destroy the coal industry by directing some EPA mole to use an obscure regulation to curry favor with his climate-crazed supporters. In both rulings, the core values of fundamental rights were preserved, an administrative state was curtailed, and liberty as well as economic freedom were preserved. The Supreme Court must be able to say what the law is without the uniformed crying that they cannot get what they want. Trump’s initial “Muslim ban” on border security was struck down, and subpoenae seeking the bank records of his family business were enforced, all by a Supreme Court under fire for fulfilling the Marbury v. Madison legacy. They will say what the law is, whether Orange Man Bad is the unitary executive or not.
The late Antonin Scalia embraced “originalism” to protect the Constitution’s design for government as a guarantor of individual liberty. The Framers establishment of a system of checks and balances among three branches of government would prevent the abuses of power of elected or appointed officials, as well as limit the powers of the federal government and reserve significant power to the states. Tyranny results from the factional concentration of power in a single form or branch of government, and this cannot stand in our republic. The “national political majority” may well be, in some instances, a wolf in sheep’s clothing. Justice Scalia said this at a lecture at Brown University in 1991:
“A Bill of Rights has value only if the other parts of the constitution—the part that really “constitutes” the organs of government—establish a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the Bill of Rights expresses. If the people value those liberties, the proper constitutional structure will likely result in their preservation even in the absence of the Bill of Rights, and where that structure does not exist, the mere recitation of the liberties will certainly not preserve them. So while it is entirely appropriate for us Americans to celebrate and decorate our wonderful Bill of Rights, we realize, or should realize, that it represents the fruit and not the roots of our constitutional tree. The rights it expresses are the reasons that the other provisions exist. But it is those other humdrum provisions—the structural mechanistic portions of the Constitution—that pit, in James Madison’s words, “ambition against ambition” and make it impossible for any element of government to obtain unchecked power—that convert the Bill of Rights from a paper assurance to a living guarantee…”
CONCLUSION
Far from “Constitution worship,” as this spoiled hack author calls textualism and originalism, adherence to the structure of government and to the core policies therein are our best guarantee against the predation of a “national political majority” that can, in any given election, destroy freedom and impair liberties that are enshrined in the Bill of Rights. The “widespread cynicism” noted by the author is the result of the legacy media, driven by clueless producers, themselves jumping on the bandwagon of court bashing. If only Scalia was alive to retort. And I bet his good friend Ruth Bader Ginsburg might agree. They are enjoying lunch daily in some peaceful place, hoping we see the light. Teach your children. It is not too late.
Mike Imprevento
September 2024
