Required Reading: After the Republic By Angelo M. Codevilla

[EXCERPT]From the primary season’s outset, the Democratic Party’s candidates promised even more radical “transformations.” When, rarely, they have been asked what gives them the right to do such things they have acted as if the only answer were Nancy Pelosi’s reply to whether the Constitution allows the government to force us into Obamacare: “Are you kidding? Are you kidding?”

On the Republican side, 17 hopefuls promised much, without dealing with the primordial fact that, in today’s America, those in power basically do what they please. Executive orders, phone calls, and the right judge mean a lot more than laws. They even trump state referenda. Over the past half-century, presidents have ruled not by enforcing laws but increasingly through agencies that write their own rules, interpret them, and punish unaccountably—the administrative state. As for the Supreme Court, the American people have seen it invent rights where there were none—e.g., abortion—while trammeling ones that had been the republic’s spine, such as the free exercise of religion and freedom of speech. The Court taught Americans that the word “public” can mean “private” (Kelo v. City of New London), that “penalty” can mean “tax” (King v. Burwell), and that holding an opinion contrary to its own can only be due to an “irrational animus” (Obergefell v. Hodges).

What goes by the name “constitutional law” has been eclipsing the U.S. Constitution for a long time. But when the 1964 Civil Rights Act substituted a wholly open-ended mandate to oppose “discrimination” for any and all fundamental rights, it became the little law that ate the Constitution. Now, because the Act pretended that the commerce clause trumps the freedom of persons to associate or not with whomever they wish, and is being taken to mean that it trumps the free exercise of religion as well, bakers and photographers are forced to take part in homosexual weddings. A commission in the Commonwealth of Massachusetts reported that even a church may be forced to operate its bathrooms according to gender self-identification because it “could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.” California came very close to mandating that Catholic schools admit homosexual and transgender students or close down. The Justice Department is studying how to prosecute on-line transactions such as vacation home rental site Airbnb, Inc., that fall afoul of its evolving anti-discrimination standards.

This arbitrary power, whose rabid guard-dog growls and barks: “Racist! Sexist! Homophobic!” has transformed our lives by removing restraints on government. The American Bar Association’s new professional guidelines expose lawyers to penalties for insufficient political correctness. Performing abortions or at least training to perform them may be imposed as a requirement for licensing doctors, nurses, and hospitals that offer services to the general public.

Addressing what it would take to reestablish the primacy of fundamental rights would have required Republican candidates to reset the Civil Rights movement on sound constitutional roots. Surprised they didn’t do it?

No one running for the GOP nomination discussed the greatest violation of popular government’s norms—never mind the Constitution—to have occurred in two hundred years, namely, the practice, agreed upon by mainstream Republicans and Democrats, of rolling all of the government’s expenditures into a single bill. This eliminates elected officials’ responsibility for any of the government’s actions, and reduces them either to approving all that the government does without reservation, or the allegedly revolutionary, disloyal act of “shutting down the government.”

Rather than talk about how to restrain or shrink government, Republican candidates talked about how to do more with government. The Wall Street Journal called that “having a positive agenda.” Hence, Republicans by and large joined the Democrats in relegating the U.S. Constitution to history’s dustbin.

Because Republicans largely agree with Democrats that they need not take seriously the founders’ Constitution, today’s American regime is now what Max Weber had called the Tsarist regime on the eve of the Revolution: “fake constitutionalism.” Because such fakery is self-discrediting and removes anyone’s obligation to restrain his passions, it is a harbinger of revolution and of imperial power.

The ruling class having chosen raw power over law and persuasion, the American people reasonably concluded that raw power is the only way to counter it, and looked for candidates who would do that. Hence, even constitutional scholar Ted Cruz stopped talking about the constitutional implications of President Obama’s actions after polls told him that the public was more interested in what he would do to reverse them, niceties notwithstanding. Had Cruz become the main alternative to the Democratic Party’s dominion, the American people might have been presented with the option of reverting to the rule of law. But that did not happen. Both of the choices before us presuppose force, not law.[/EXCERPT]

Read the rest of this brilliant essay at After the Republic

Posted by gerardvanderleun at September 28, 2016 11:11 AM