“If Democracy Goes Too Far”: ‘The Bullet Box’ Is An Option If The Ballot Box Fails, Says Gun-Rights Advocate
All Second Amendment enthusiasts are not the same. There are those who strongly believe in the right to bear arms for purposes of self-protection against criminals and for hunting and other sports usages. And then there are those who believe the ultimate purpose of the Second Amendment is to keep revolutionary violence on the table as a fallback plan if in their view “essential rights” are threatened, including gun rights themselves.
You can pretty clearly put many members of the Gun Owners of America, a group that considers the NRA a bunch of accomodationist squishes, in the latter category. The group’s longtime executive director, Larry Pratt, made that clear on his own radio show this week:
[T]he courts do not have the last word on what the Constitution is. They decide particular cases, they don’t make law. Their decisions, unlike the Roe v. Wade usurpation, don’t extend to the whole of society, they’re not supposed to. And we may have to reassert that proper constitutional balance, and it may not be pretty. So, I’d much rather have an election where we solve this matter at the ballot box than have to resort to the bullet box.
While Pratt’s term “bullet box” is attracting attention, this is a very old sentiment not just among gun enthusiasts but in broad swaths of movement conservatism. Recent proclamations in favor of the right to overthrow the government as essential to the maintenance of constitutional order have come from 2016 presidential candidates Ted Cruz and Mike Huckabee. But perhaps the clearest statement was made in 2012 by now-senator Joni Ernst, one of the GOP’s rising stars:
“I have a beautiful little Smith & Wesson, 9 millimeter, and it goes with me virtually everywhere,” Ernst said at the NRA and Iowa Firearms Coalition Second Amendment Rally in Searsboro, Iowa. “But I do believe in the right to carry, and I believe in the right to defend myself and my family — whether it’s from an intruder, or whether it’s from the government, should they decide that my rights are no longer important.”
Ernst, of course, like other Second Amendment ultras, is implicitly arrogating to herself the right to decide when godless socialist tyranny — you know, things like Obamacare or environmental regulations or court-imposed reproductive rights — has gone so far that it’s time to bring out the shooting irons and start executing one’s enemies. But you have to wonder how people like Ernst and Cruz and Huckabee and Pratt would react if such rhetoric was coming from the political left — say, a black nationalist group. The right-to-revolution thinking really does boil down to Mao’s famous edict that “political power grows out of the barrel of a gun.”
For the present, it’s enough for Pratt to remind the rest of us that his tolerance for democracy and judicial supremacy has its limits, and if pushed too far, the “bullet box” is ever-ready.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, June 1, 2016
“Marco Rubio’s Terrible New Idea”: Pandering To Voters’ Most Simplistic And Uninformed Impulses
Campaigning for president requires one to come up with policy proposals, a need that from time to time produces innovative and promising ideas. But it also produces some extraordinarily dumb ones, as Marco Rubio is now demonstrating. Here’s his latest plan to fix what’s wrong with Washington:
Shortly after 11 a.m. on the East Coast, Sen. Marco Rubio’s presidential campaign alerted the media to their candidate’s latest position, inspired by the Founding Fathers and by Congress’s seeming inability to pass conservative legislation.
“One of the things I’m going to do on my first day in office is I will put the prestige and power of the presidency behind a constitutional convention of the states,” Rubio said as he campaigned in Iowa. “You know why? Because that is the only way that we are ever going to get term limits on members of Congress or the judiciary and that is the only way we are ever going to get a balanced-budget amendment.”
With this, Rubio manages to combine a promise for something that will never happen with a spectacularly terrible idea.
We’ll start with the constitutional convention. There are two ways an amendment to the Constitution can be proposed: when two-thirds of both houses of Congress vote to do so, or when two-thirds of the states call for a convention to propose amendments. Rubio is saying that because you couldn’t get super-majorities in Congress to support his three ideas, he wants to push for the states to assemble a convention to offer these amendments.
The first thing to understand is that the president has nothing to do with this process. What Rubio is promising is that in between trying to pass his tax cuts and outlaw abortion and repeal Obamacare and wage war on the Islamic State, he’ll use the bully pulpit to advocate for a constitutional convention. So President Rubio will give a speech or two about it? Mention it in the State of the Union? That’s fine, but at best it might bring the chances of getting two-thirds of the states to sign on from approximately zero to ever slightly more than zero. Getting a constitutional convention might be a bit easier than assembling two-thirds majorities in Congress, but not by much.
So he can’t make these constitutional amendments happen. But what about the amendments themselves? Term limits for judges is the only one that might not be all that problematic, but it’s a little hard to tell what the problem is that Rubio is trying to solve. Lifetime tenure for judges is supposed to insulate them from momentary political concerns, but in practice it turns out that there’s plenty of politics on the bench. Presidents pick nominees they hope will reflect their own political values, and most of the time they’re right, with an occasional exception here and there. Some have suggested that the Supreme Court could use more turnover, so there should be a limit of some long but not endless stretch for justices (18 years is one common number). That might be fine, but it’s hard to see what kind of transformation in American justice would result from limiting all federal judges’ terms. If anything, the nominating and confirmation process would become even more political, since you’d need more judges.
But that’s the least bad of these ideas. The next is term limits for Congress, an idea that fell out of favor for a while and Rubio now wants to bring back. But what is it supposed to accomplish? Is Washington going to run more smoothly with more members who don’t know how to pass legislation? We’ve seen a huge influx of new members (mostly Republicans) in the last few congressional elections, and they haven’t exactly been committed to making government work. To the contrary, they’re the ones who care least about having a functioning government and are more likely to be nihilistic extremists who want to shut down the government, default on the national debt and govern by crisis.
Rubio is smart enough to know that the myth of the citizen legislator unsullied by contact with sinister lobbyists, who comes to Washington armed with nothing but common sense and a strong moral fiber and cleans up government, is just that — a myth. But he also knows that saying “Kick all the bums out!” is an easy way to pander to voters’ most simplistic and uninformed impulses.
I’ve saved the worst for last: a balanced-budget amendment. It has long been a popular item on the conservative wish list, but if you put it into practice, it would be an absolute disaster.
The childish way of thinking about it is that a requirement that the government spend no more than it takes in every year would impose fiscal discipline and make government live within its means. But in truth it would require radical cutbacks in everything government does — which means not only the programs Republicans don’t like anyway, but also the ones they do like. In the last half century, through Republican and Democratic presidencies and Republican and Democratic Congresses, we’ve had only five years when the government’s budget was balanced (four of which came during the boom of the Clinton years). Without the ability to issue bonds to cover each year’s shortfall, we’d be left without the ability to do what’s necessary to serve all of our many public needs.
Consider what would happen during an economic downturn if we had a balanced-budget amendment. What you want in that situation is for government to step in and help people — by providing things like food stamps and unemployment compensation to keep people from falling into truly desperate situations of hunger and homelessness, and also to do what it can to spur job creation and keep the recession from being worse than it would otherwise be.
But in a recession, tax revenue also falls, because people are losing jobs and incomes are plummeting; as an example, between 2008 and 2009, the federal government’s revenues declined by more than $400 billion. With a balanced-budget requirement in place, just at the moment when government’s help is needed most, not only would it be powerless to do anything to mitigate the toll of the recession, it also would be required to impose brutal budget cuts, pulling money out of the economy and making things even worse. If Rubio got his way, every recession the country experienced would be deeper, longer and more punishing.
Some conservatives say, “Nearly every state has a balanced-budget amendment, so why can’t the federal government have one too?” But that’s actually another reason why a federal balanced-budget amendment would be so dangerous. When a recession hits, states have no choice but to cut back, slashing needed services and firing workers just when their economies are suffering. At those times, the federal government can step in to limit the damage, boosting the hundreds of billions of dollars it already provides in aid to the states. As it happens, many of the states run by Republicans are the ones most dependent on federal government aid. In 2012, according to the Tax Foundation, the federal government picked up 31.5 percent of all state budgets, including 44 percent of Louisiana’s, 45 percent of Mississippi’s and 41 percent of Tennessee’s. So in places where Republicans are denouncing the federal government in the loudest terms, without the federal government’s help their state finances would utterly collapse.
The good news is that none of what Rubio is advocating for will ever happen. But advocating for constitutional amendments is what you do when you don’t have the stomach for actual governing. It’s certainly seductive — we’ll just change the Constitution, and that will sweep away all the messiness that comes with politics. But it’s a fantasy. Unfortunately, there are still plenty of presidential candidates who don’t respect the voters enough to tell them that passing laws and solving problems is difficult and complicated, and to get what you want to you have to slog your way through it. That’s not an inspiring campaign message, but it’s the truth.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, December 31, 2015
“Adjudicating From The Legislature”: Yes, Constitutional Conservatives Are Radicals
This morning Brother Benen looked at a proposal by Steve King to strip the federal judiciary of jurisdiction over any case involving marriage and noted its provenance in prior right-wing court-stripping measures. But he also suggested such advocacy ought to debar King from calling himself a “constitutional conservative.”
Whatever one thinks of marriage equality, court-stripping is itself ridiculous. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.
And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – King and his cohorts want to adjudicate from the legislature.
I think a clarification is appropriate here. People like King use the modifier “constitutional” before “conservative” to indicate that they are not interested simply in opposing change or in going back to very recent public policies. Their eyes are fixed on a distant vision of the perfect governing order that they believe the Founders spelled out before it was ruined by courts and legislators and presidents alike. And it certainly does not include the right of final judicial review as understood by the rest of us. And so their expedient is court-stripping schemes which they believe help restore the proper constitutional order, or at least prevent current disorders from getting worse.
Just as “constitutional conservatives” tend to believe that absolute property rights and even fetal rights were embedded in the Constitution, never to be removed without an explicit amendment, they believe in an eternal scheme of states’ rights that would most definitely include all matters related to marriage. So in their minds, that eternal scheme, not recent precedents, in what defines “conservatism,” and thus the most radical measures are justified to bring back the “Constitution” as they understand it.
Of course constitutional conservatives are radicals. But many of them believe they are fighting for a governing model quite literally handed down by God Almighty, who intended it to be maintained quite literally forever. And that is indeed a conservative–and a radical–way of looking at things.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, April 23, 2014
“A Future Cheney Could Do It All Again”: The U.S. Will Torture Again—And We’re All To Blame
Reliably enough, out came Dick Cheney to trash the Senate torture report and to say of the use of torture: “I’d do it again in a minute.” None of us doubt that he would. But the more interesting and challenging question is: Could he?
More precisely, could a future Cheney, after a future terrorist attack on the U.S. mainland, get away with it? Could a future administration set up the whole fraudulent and immoral apparatus—a Department of Justice defining torture so narrowly that it somehow magically doesn’t include sleep deprivation or rectal hydration or waterboarding, followed by a CIA and military saying “Hey, what’s the big deal? It’s all legal!”? (Even in his press conference Thursday, CIA chief John Brennan acknowledged that it all could happen again: “I defer to the policymakers,” he said, as to what might occur.)
People like me are supposed to say something like: No, we’re better than that. Alas, I say we are not better than that. It could happen again. Easily.
In fact, let’s go further. Cheney is a figure of horror and ridicule these days (although by no means to everyone—to the Fox News audience to which he spoke the above words Wednesday, he’s oracular). But can we honestly say that back in 2002, 2003, 2004, he wasn’t carrying out the people’s will? We get the government we deserve, de Tocqueville said. And in the Bush-Cheney regime, we got exactly that.
There exist four mechanisms in our democracy by which the state can be compelled to live up to what we call, rather farcically in a gruesome week like this one, “our ideals.” There is the will of the people; the resolve of the political class; the courage of the media; and the authority of the courts. With regard to our torture regime, all four failed, and failed completely.
The people were, in theory, against torture. I have on my screen here a study from Reed College (PDF) that asserts that from 2001 to 2009, majorities of public opinion consistently opposed torture, by averages of about 55 to 40 percent. That may be, in the abstract. But were Americans ever so worked up about the practice that they demanded it not be undertaken in their name? Never.
In fact, for most of the Bush era, the opposite was the truth. I remember very clearly the public mood after the 9/11 attacks. There was appropriate anger and shock and sorrow. But it bled into other less honorable manifestations, a paradoxical combination of, on the one hand, a lust for revenge in any form among a certain segment of the populace, and on the other hand a tremulous fear among a different segment that sanctioned anything being done in its name. Too many people reverted to a childlike state, and they wanted a daddy-protector. And no, this wasn’t understandable under the circumstances.
As for the political class, I doubt I need to give you a very hard sell on its failure. It was thoroughgoing and bipartisan. The timorous Democrats, with a few noble exceptions like Robert Byrd, largely bought into the global war on terror. The Republicans, well, you know about them. The foreign-policy establishment of Washington and to some extent New York lined up behind the administration on nearly every important question. The urge among this class is always to swim with the tide: In 2003, when the Council on Foreign Relations was casting about for a new leader, it settled on Richard Haass, who had been in Bush’s State Department. He has said since that he was 60-40 against the war, but one would have been hard pressed to know that then, back when his boss, Colin Powell, was warning us about those weapons of mass destruction that didn’t exist. On the torture question, this class was outraged when it was easy to be outraged, like when the Abu Ghraib story broke, but the outrage was never sustained.
Among the media, there were to be sure many brave journalists—Jane Mayer, Robin Wright, many others—who broke story after story about torture. We’re in their debt. But their great work was more than balanced out by the equivocation caucus—well, we can’t really be sure it’s torture. And then there was the segment of the media that actively cheered it all on. More broadly, the media as a whole were afraid to break ranks. I have had a number of conversations with prominent media people—in TV and radio, names you’d know—who, by way of trying to defend their lack of zeal and confrontation in those post-9/11 days, tried to explain how many furious emails they got when a report diverged modestly from the accepted line.
And the legal system? Again, there were some courageous judges who tried. A Virginia federal judge named Gerald Bruce Lee ruled in 2009 that four Abu Ghraib detainees could sue CACI, the private military contractor in Iraq. But overall the legal system has done little to say “this was against the law.” Much of the fault for that, of course, lies with Barack Obama, who chose early on not to seek prosecutions of Bush administration officials. And even now, in the wake of this report, what is your level of confidence that anyone will be prosecuted as a result of the release of this report? I thought so.
Failures top to bottom. Now, one would like to say that we as a society have learned the lessons of these failures and would not permit this to happen again. Don’t count on it. If there is another terrorist attack on the U.S. mainland, the odds are strong that we will reenact this grim tragedy from start to finish, if a neoconservative regime happens to be ensconced in the White House. The people would respond with the same fear, which would give license to the same behavior, and the political class and the media and the courts would probably go along.
So yes, it’s a moral horror that Cheney says he’d do it all again. But it’s also all too likely that a future Cheney could do it all again. That’s the far greater moral horror, and the one we don’t want to face, because it implicates us.
By: Michael Tomasky, The Daily Beast, December 12, 2014
“So Much For Checks And Balances”: Welcome To Tennessee, Where Lawmakers Are Trying To Kneecap Judges
In state houses around the country, January often brings the emergence of many of the year’s most dubious legislative proposals. January is the month of patently unconstitutional bans on “sharia law.” It is the month of promoting the unlawful practice of jury nullification. But mostly it’s the month for legislators to attack the independence of the judiciary.
Again this year, all over the country, state lawmakers have introduced bills to curb their cousins in the judicial branch. In Oklahoma, lawmakers want to remove from the Code of Judicial Conduct references to judicial independence. In Kansas and New York, state lawmakers want to force trial judges to render their decisions within a certain time or be forced out of office. But perhaps the most egregious of this year’s crop of ill-advised measures comes from Tennessee, where lawmakers have introduced a bill that combines many of these bad measures from other states into one big ball of scorn for the state’s judiciary.
SB 2322, as the Tennessee bill is known, seeks to replace the administrative office of the state courts with the treasurer’s office, which is part of the executive branch of state government. The state Supreme Court would no longer be able to “direct” the work of the court administrator but rather “urge” executive branch officials to take certain action. The bill would shut down the state’s judicial disciplinary board, now under the auspices of the judicial branch, and replace it with a new review board that would answer, again, to the state treasurer. That board would be made up of political appointees from the executive and legislative branches of government. Judges would be prohibited from serving on a board evaluating the work of the judiciary.
If that were all SB 2322 did, it would be bad enough. Each of the above components of the pending legislation violates separation of powers principles and constitutes impermissible encroachment upon basic judicial functions. It is axiomatic that judges should have the power and authority to administer their own affairs, as they do in every other jurisdiction in the nation, and should not be precluded from evaluating the disciplinary issues that arise within their profession. You don’t need to be a political scientist to understand the pressure the executive branch would be able to wield over Tennessee’s judiciary if the legislature were to enact this bill.
But there is more. SB 2322 seeks to dramatically alter the nature of death penalty procedures in a way that undermines core judicial functions. Judges would not be able to extend filing deadlines in capital cases — even if such extensions were justified and necessary to ensure the constitutional rights of defendants. And judges also would be forced to meet their own deadlines for resolving capital cases, even if they were not ready to do so. Meanwhile, lawyers representing indigent capital defendants would be required to reimburse the state if they were later found to have rendered “ineffective assistance of counsel,” a requirement that would make it materially harder for indigent defendants in the state to get a court-appointed lawyer willing to take the case.
These proposed measures, too, are patently unconstitutional incursions into the judiciary’s work. But they also happen to be bad ideas beyond their constitutional dimensions. Forcing judges to rush their decisions won’t make those decisions more accurate or justifiable — and that won’t ultimately save Tennessee taxpayers from the costs of appellate work. And precluding capital defendants from seeking more time to file their court papers — so they can better evaluate evidence, for example — won’t help root out instances of false confessions, or flawed eyewitness testimony, or prosecutorial misconduct.
Experts who study these sorts of bills are, quite naturally, both alarmed and disappointed. “There’s a reason no other state in the country has such a system, Bert Brandenburg, the executive director of Justice at Stake, told me Monday. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”
Tennessee’s judicial branch is not perfect. No branch of government anywhere is perfect. But it is reckless to think that the best solution to perceived problems within this state’s judiciary is to turn control of it over to the executive branch. There is a reason that our systems of government have three branches that are asked to provide checks and balances upon each other. What SB 2322 would do is upset that balance, and preclude those checks, in a way that surely would end up harming the people of Tennessee.
By: Andrew Cohen, The Week, January 29, 2014
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