When a presidential candidate says “I know nothing” four times in one interview, and for good measure blames a “lousy earpiece” for not hearing the words “David Duke,” should I be glad that he has not yet completely abandoned hypocrisy (in which vice pays tribute to virtue)? If the man says he knows nothing about the nuclear triad, I believe him. If he were to deny any knowledge of the Know-Nothing Party of the 1850s, I would believe him right away. But if he cannot answer the question “what parts of the Klan can’t you disavow” without hemming and hawing, I question not just his morality but his strategy as well. His mastery of dog whistles is helping him in the Republican primaries, but in the fall I expect Democrats will be able to convert today’s evasive whistles into loudly audible air raid warning sirens to get their voters out. But Hillary also needs to sharpen up her response to Trump. He is appealing, believe it or not, to many folks who feel that “folks with plenty of plenty, they got a lock on the door.” If Hillary cannot convey to voters that she’s “got no lock on the door” and is more of a happy warrior for the regular people than Trump, she too has a big problem.
Self-proclaimed originalists everywhere face a dilemma: should the late Antonin Scalia be merely venerated, or must he be adored? To leave the vulgate behind for a moment: dulia or latria? Or could we compromise on hyperdulia? If even Martin Luther (and let us not quibble on this point) gave hyperdulia to the Virgin Mary, can any less be due to the Justice than whom no greater Justice can possibly be conceived?
I expect all sides to act in character vis-a-vis the Supreme Court vacancy. Senate Leader/Turtle McConnell will cross the road even more slowly this election year. President Obama will, I can only hope, use his Constitutional prerogative to make Republican obstruction as politically painful as possible by naming either a South Asian or African-American man or a Vietnamese woman, all of whom are surely utterly qualified but whose identities are inescapably part of the political stew. It has been said (Finley Peter Dunne’s Dooley, I believe) that the Supreme Court follows the election returns. And this year the Supreme Court as an issue also precedes the election returns!
Cliven Bundy made no statement at his first court hearing in Portland, Oregon last week, but his son Ammon previewed a line of defense the other day that I expect we will hear repeatedly from the political right, if not from defense lawyers. The younger Bundy claimed at his bail hearing on January 29 that “it’s not that we don’t respect the government. In fact it is just the opposite. I’m a federalist… My only desire is to protect freedom.”
To the extent one can credit Ammon Bundy and his fellow refuge occupiers with a principled or even just an articulate political philosophy, “federalist” makes little sense in terms of its original meaning in the ratification debates of 1787-88. James Madison and Alexander Hamilton and John Jay wrote The Federalist Papers to promote a strong and vigorous central government. Yes, with limitations. But they were struggling to replace the centrifugal Articles of Confederation with a political charter for an extended and extensive republic.
Many if not most twenty-first century self-styled “federalists” would be more honest and self-aware if they flew the banner of “anti-federalist.” The anti-federalists promoted important contributions to American democracy, most importantly the Bill of Rights, which the federalists thought a superfluous addition to the original Constitution. But if the anti-federalists had carried the day we would not have had a Constitution in the first place. As it is we have a Tenth Amendment that places some limits on the national government’s power. But the Property Clause and the Necessary and Proper Clause, among others, are not nullified by any later amendments and, pretty plainly, make hash of the self-serving claims of Bundy Sr. and Jr.
RIP Justice Scalia. We seem to have moved through the five stages of grief pretty quickly, have we not? Could our political gridlock get any worse? Could we see an inconclusive election with nobody reaching 270 and then a 4-4 split on the Supreme Court?