In a battle of World War I, the imaginative French general Ferdinand Foch is said to have stated, "My centre is yielding. My right is retreating. Situation excellent. I am attacking." During the recent election, I baffled many friends and acquaintances on Left and Right by voting Democrat at the top of the ticket and Republican at the bottom. "Don't you know how evil the other side is? Don't you know how dangerous they are? How could you?"
It has been no easier since the election, as I have continued to sharply criticize the president's claims and behavior, while still trying to support down-ballot Republicans in run-off elections. The Georgia candidates did not return the love, instead joining the president's attacks on the Republican-run presidential election. As much as I admire Majority Leader McConnell, I can not now separate the president from the candidates McConnell needs to keep his majority. My electoral strategy, which seemed so promising just after election day, is in disarray.
What am I to do in this situation, in which the presidential candidate I dislike least is likely to win with at best a compromised opposition due to the mischief of the incumbent whom I dislike most? What am I to do when the president and many of his supporters give no indication that they might acknowledge the legitimacy of the election and of his opponent's presidency? What am I to do with threats of violence all around? I give thanks for a target-rich environment, and I attack!
There is plenty of blame to go around for this mess, but only one faction leader has a vested interest in fixing the immediate problem: President-elect Biden. He ran on cooling things down (no one seriously believes that President Trump intended to do that). Biden has been forced to surround himself with people who have been pouring gasoline on the flames during the two previous administrations, which means it will be necessary but difficult for him to distinguish himself from them.
If he wants advice from a cautious supporter, here is mine: look in the mirror! There is a simple cause and a simple solution to most of the fear, hostility, and distrust of him and his party. Democrats like to try to find structural solutions to behavioral problems, but they have so far lacked the imagination or the courage to fix a structural problem that they caused over a century ago. Most of the heated rhetoric on both sides is due to the Democrats' determination to defend their wrong decision and to the Republicans' refusal to accept it.
In the annals of bigotry and racism, Woodrow Wilson is a major figure. His disdain for the United States Constitution was matched by his sympathy for the Confederate cause in the Civil War and for segregation afterwards. His Living Document theory of the Constitution, which is now bizarrely associated with the cause of Civil Rights, was initially used to protect segregation. Originalists are now unfairly forced to try to prove that their philosophy could have achieved the same results that people like from the Living Document theory.
The arrogance behind the Living Document theory was epitomized in the language of Supreme Court Justice Thurgood Marshall, when he insinuated that it was necessary for the courts to correct the Constitution, selectively ignoring what came before the 14th Amendment, because of the alleged moral inferiority of the nation's founders. This is a godlike claim that minimizes the effectiveness of both persuasion and civil disobedience in a representative form of government. If the laws were defective, why might not the voters change them? If they were unwilling to change them, why might they not be made willing by a sizeable minority's refusal to obey the law, rather than being overruled by the bad faith of public servants who were entrusted with the upholding of the law? And why on earth would a self-respecting people consider the Bill of Rights, the Fourteenth Amendment, and other improvements to be departures from the original design rather than developments of it?
The spirit of the Living Document theory is the spirit of lawlessness. It is a fitting symbol of all that is evil and destructive in human society and government. Just as no human being is able to completely repudiate God's moral government of the universe, so no citizen or public official is able to completely repudiate the laws of the land. Where the mischief occurs is in twisting laws and in picking and choosing which laws one will obey. Even treason itself is an attempt to change the government, not to change all of the laws.
We are in the process of a transition from a Living Document theory governing the judiciary to original intent, including the intent of constitutional amendment, governing it. Joe Biden, if his election is confirmed by the normal process, should commit to continuing that transition to completion rather than to trying to stop it. This fulfillment of his oath of office would earn him the confidence of the American people.
The Constitution is designed to thwart the ambitions of dangerous men, and it is still strong after more than a century of serious attacks. However, it is not indestructible. The actions that winners and losers take in this and subsequent elections will either prolong or shorten its rule. It has always been so.
No comments:
Post a Comment