Posted by Curt on 19 October, 2016 at 5:00 am. 1 comment.


David French:

As I write this piece, millions of conservative Americans are searching their consciences, trying to decide whether they should vote for a man who openly refutes and mocks their core values, and thereby ensure that Hillary Clinton wins by three points rather than eight. They are making this decision against a backdrop of concern, intentionally stoked by well-meaning-but-deluded citizens, that America’s constitutional republic won’t survive a Clinton presidency.

These folks think and argue that America is one more bad president and one or two more Supreme Court justices from oblivion. They’re wrong. That’s not to say that America is too big to fail or that we couldn’t “fundamentally transform” into something unrecognizable. But such a transformation couldn’t be singlehandedly pulled off by the Supreme Court or the President. If it happened, it would be the result of collective societal action over a sustained period of time. Our ship is resilient. It would take more than one iceberg to sink.

For that, we can thank Alexander Hamilton and the rest of America’s Founding Fathers. They built a system remarkably resistant to even sustained incompetence and corruption, with checks and balances so comprehensive that when America commits enduring sin, it does so only through the consent and participation of the governed, manifested through multiple branches of government.

Let’s take the Supreme Court, for example. There is little doubt that it has slipped from the limited role envisioned by the Founders, asserting powers far greater than those granted to it by the Constitution. But if you closely examine its decisions, you’ll see the extent to which the court on its own can’t reshape American life.

Consider gun rights. One of the worst outcomes of a Clinton-appointed court would be a reversal of the Heller decision, the case recognizing that the Second Amendment protects an individual right to keep and bear arms. Yet the immediate real-world effect of such a reversal would be limited. Indeed, most new gun-control proposals would be entirely legal even underHeller. Its reversal wouldn’t repeal any single provision of any single state constitution, nor mandate any congressional action. It would be at worst the first step toward government persecution of gun owners, not the last — and other courts and each layer of government would subsequently have ample time and opportunity to push back.

What about abortion rights? While Roe v. Wade is an abomination on the order of Dred Scott, pro-life Americans can’t kid themselves. Even if Roe were reversed tomorrow, abortion would still be legal in the United States. The true long-term impediment to reversing Roe hasn’t been the Supreme Court but rather the indifference and even support of the American people. If a solid majority of Americans were as committed to life as most pro-life activists are, Robert Bork wouldn’t have been Borked, our judicial nominations since Roe would have been entirely different, and the decision would have long been relegated to the dustbin of history. As difficult as this is to say, Roe remains in effect through the consent and support of the American people.

Religious liberty, too, is far less legally fragile than those on the right imagine. The most critical religious-liberty decision of the entire Obama presidency wasn’t Hobby Lobby v. Burwell, a remarkably narrow case interpreting a federal statute. It was Hosanna-Tabor Evangelical Lutheran Church and School v. the EEOC, in which a unanimous Supreme Court beat back the Obama administration’s attempt to “fundamentally transform” relations between church and state, attempting to inject the state into the very process of hiring and firing ministers. Even Ruth Bader Ginsburg thought the government’s position was too radical to countenance in that case.

The Supreme Court has ruled unanimously against the Obama administration no less than 23 times, and has many times reaffirmed bedrock constitutional principles protecting religious liberty and prohibiting viewpoint discrimination by overwhelming majorities. Our core liberties are not as precarious as you think

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