(POLITICS, NOT RUNNING)
The heat and passion of political discourse is but a measure of the times, not their cause. And so in this particularly rancorous presidential campaign of 2016, where heat and passion has been felt from both political parties, what we are witnessing is an unsettled electorate wrestling toward an uncertain future.
With a large number of combative issues already facing the country, one more unexpected fissure opened in the crust of our political landscape recently with the sudden passing of associate Supreme Court Justice Antonin Scalia.
In Justice Scalia we had one of the most vocal justices of any era, and perhaps the most politically polarizing of his own. Considered a strict constitutional originalist, Justice Scalia was well known and highly regarded for his sharp-elbowed questioning and scathing dissents.
Today, President Obama nominated chief D. C. appellate court judge Merrick Garland to fill the Scalia vacancy. Though Judge Garland is universally well-liked and has a moderate judicial record, in today’s hothouse political climate no nominee proffered by Obama can stand before the negating Republican-led Senate and expect a hearing much less an up-or-down vote for confirmation.
Their hope is that the Republican nominee will prevail in November, and thus they will be positioned to replace Justice Scalia like for like on what is now an evenly divided bench.
Their rational is that in the midst of a heated political campaign in the final year of an incumbency they should wait and ‘let the people speak’. But of course the people have already spoken. They did so by reelecting President Obama to a second four year term in 2012. Not a three-year term, but four, as set forth in the Constitution, which the Republican-led senate claims as its holy writ and guiding light.
But there is another irony, as well. Many in the current GOP, the party established to oppose slavery, the party of Lincoln, are, like former Justice Scalia, devoted to an originalist interpretation of the Constitution. And yet this self-same party of Lincoln seems at odds with the Illinois rail-splitter on how alive a document the Constitution really is, or should be.
In Lincoln’s famous address at the Cooper Union In New York City on February 27, 1860, a speech that took up the incendiary issue of its day, the power of the federal government to control slavery in the new territories, Mr. Lincoln first enumerated how the 39 original signers of the Constitution either voted on or spoke of slavery. After logically showing how a clear majority were against it, Mr. Lincoln said the following:
“Now, and here, let me guard against being misunderstood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience – to reject all progress – all improvement.”
That, my friends, does not sound like a Constitutional originalist. Instead, it sounds like a man who believed that the Constitution was, in fact, and by necessity, a living, breathing document that needed to reflect the “current experience, progress and improvement” of the nation.
And yet he tempered this interpretation with a healthy regard for judicial and political precedent.
“What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, can not stand.”
The U. S. Constitution was first ratified on June 21, 1788. Since then it has been amended 27 times, the 27th amendment having been ratified May 7, 1992, a full 202 years, 7 months, and 12 days after being submitted by Congress to the states (it involves Congressional salaries). Yet by originalist’s standards, the Negro represented only 3/5 of a human being, even as the Declaration of Independence declared ‘all men are created equal’.
The question then becomes how did the founders interpret the meaning of “man”? Well, we know exactly what they meant, white, land-holding gentlemen.
Thus by originalist’s standards the right of women to vote would never have been allowed. By originalist’s standards, the federal authority to regulate or control slavery in the federal territories would never have been allowed. By originalist’s standards none of “the lights of current experience, all progress, all improvement” in American life over the last 230-plus years would ever have been allowed.
How, then, can one claim to hold to the theory of Constitutional originalism, and not also accept by the standards of our day the mantels of racist, misogynist, and obscurantist?
But let’s also explore further what passes for political debate and dialogue in current times. Though we may have forgotten — for such things are rarely taught anymore — the Chicago Republican convention in May 1860 has been described as “more a Roman orgy than a convention”, and “something of a cross between a poorly organized riot and the World Series”.
In light of the heat and passion on display at his campaign rallies, Donald Trump counters those who say he isn’t acting very ‘presidential’ by declaring he can be just as presidential as any man who has ever held the office, with the possible exception of Lincoln, who Mr. Trump seems to hold in high regard.
So let’s hear once again Mr. Lincoln from his Cooper Union speech of February 1860.
“A few words now to Republicans. It is exceedingly desirable that all parts of this great confederacy shall be at peace, and in harmony, one with another. Let us Republicans do our part to have it so. Even though much provoked, let us do nothing through passion and ill temper. Even though the southern people will not so much as listen to us, let us calmly consider their demands, and yield to them if, in our deliberate view of our duty, we possibly can.”
Compare that admonition along with Lincoln’s elegant “with malice toward none, with charity for all” from his second inaugural in the heat of the Civil War with the demagoguery we hear in 2016.
And on the other side of the aisle, while less purely vitriolic, we still hear an abundance of outright pandering, over-promising, and euphemistic mea culpas like “I misspoke”, exactly the hallmarks of disingenuousness that have fueled the anti-establishment passion Trump has tapped into in the first place.
Yet history suggests that the system as designed is working just fine. Fearful of a dictatorial king, and covetous of their own prerogatives, the framer’s constructed a government of opposition that erected barriers to easy rule, even as while restricting eligibility in making that rule.
So even if Mr. Trump does in fact take the Republican nomination, and even if he is elected as 45th president in November, it’s fair to assume that he will find walls of opposition erected along every borderline as he formulates policies for his term. Then we will see how truly Lincoln-esque he can really be.