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Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

Why We Can Be Optimistic About America Despite Scalia And Trump


“Despair is a mortal sin” is the only phrase I remember Bill Buckley ever repeating to me — aside from “What’ll you have?” in the evening.

Conservatives are understandably saddened by Justice Scalia’s death. He was a beacon of good sense, good constitutional sense, in a political world seemingly besotted by heavy-booted ubergovernment.

Adam Smith said, “There’s a lot of ruin in a nation,” by which it is generally thought he meant that a lot could go wrong before a nation finally collapsed. Surely that is true of America. If the only thing that has been standing between the survival and the collapse of constitutional government and freedom in America is a single court or a single Supreme Court justice, then we’re closer to running out of ruin than we thought.

Despite the long Obamanian winter of our discontent, there are signs of spring — although it is true that Donald Trump’s successes may make us think it is only “Springtime for Hitler and Germany.” While we’re on the subject — how to put this delicately? — springtime for liberal Justice Ruth Bader Ginsburg it is not.

Across the land — or as the politicians say, sometimes even at dinner, “across this great country of ours” — people have rejected President Obama and the philosophy he represents, which is the philosophy of the Democratic Party, which is the politics of identity and envy, anti–Western Civilization multiculturalism, class conflict, and Marxist distribution of private property.

Americans Are Rejecting Big Government

Thirty-one states now have a Republican governor. The Democrats have lost more than 900 seats in state legislatures. Republicans now control both houses of the legislature in 30 states, up, way up, from 2008. That change should be seen as a political victory, which it was: it was a rejection of the politics of Obama and the Democratic Party. A political renaissance. It is true that you might not know it by looking at the Republicans in Washington. But out in fly-over land, Republicans are changing the way government operates.

Where there is still mass poverty, there is still mass government, meddling in the economy, and there is the inevitable corruption that comes with mass government.

In a recent speech, Charles Murray gave three reasons for being optimistic about the cause of freedom. The first is the demise of the intellectual concept that central planning works. People have discovered that the market doesn’t have to work perfectly to work better than government. The market has lifted millions and millions of people around the globe out of poverty. Where there is still mass poverty, there is still mass government, meddling in the economy, and there is the inevitable corruption that comes with mass government. Think, also, of crony capitalism.

Murray’s second point is the widespread understanding “that the government is no longer an extension of us. It is us versus them.” People have come to realize that President Obama is wrong when he says, “We’re all in this together.” (What do you mean “we,” kemosabe?) Government feathers its own nest while it regulates the people’s nest-building. The average wage of federal employees in 2014 was 78 percent higher than the private-sector average.

Murray’s third point is that we are realizing that the happiness we are pursuing is gained by taking responsibility, and that the welfare state, by providing goods, services, and security, eliminates the need to take responsibility. That deprives us of our humanity.

Not everyone will agree with Murray, or agree that we have turned the corner necessary to see what he says is there to see.

But there are other reasons to be optimistic. Science (where computing power doubles every two years) will continue to disclose amazing secrets — like, say, that boys and girls really are different, and that humans are hard-wired to achieve happiness by taking responsibility — even to those who don’t want to hear them. Hillary may try to stand athwart science yelling Stop!, even as she wants to stand on, throttle, and bury the First Amendment. But science, and scientists, will go where they are welcomed. In the end, they will bury her.

Raise Hell Over Scalia’s Successor

Conservatives should be of good cheer and raise a helluva ruckus over the confirmation of Justice Scalia’s successor. The more politicized the event is, the less hoary legitimacy the Supreme Court will have. The elites have trashed the law and the culture of this country, and the Supreme Court, amending the Constitution with abandon, has been one of their implements. As a joke might ask: What do you call it when (as a Gallup poll showed in September) 50 percent of the people disapprove of the job the Supreme Court is doing? Answer: A beginning.

A knock-down-drag-out fight over the confirmation of Scalia’s successor, and its timing, is exactly the catharsis the country needs.

Justice Scalia said that the process for amending the Constitution is now infinitely more difficult than it was when the provision was written (he concluded that 2 percent of the population could block an amendment today), and that the provision itself should be amended. That difficulty may be only one reason why the liberal members of the court now perform the politically controversial amending function themselves. Justice Scalia, who said he would like some popular control over the process of nominating justices, was asked if, therefore, Supreme Court justices should be elected instead of appointed. He answered, dismissively, “No!” Given the prospect of a Justice Donald Trump, he may have been right.

But he may have been wrong. If we are to be self-governing, we should elect those who write our rules, as judges now do. We must also remember, always, Abraham Lincoln’s warning: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.” Repeat three times. And make the children memorize it.

A knock-down-drag-out fight over the confirmation of Scalia’s successor, and its timing, is exactly the catharsis the country needs.

We must be of good cheer. We are not yet old and fragile. Constitutional governance is, Scalia himself said, “worth fighting for, win or lose.” The struggle availeth — and even if it doesn’t, it is our responsibility to struggle anyway, and it is responsibility that makes us human. We will make new friends in the battle. Write new stories, sing new songs, find new heroes.

And remind our grandchildren that despair is a mortal sin.