On September 17, 1787 our Constitution was signed by 39 delegates at the Constitutional Contention and sent to the states for ratification. Last week’s Constitution Day marks the 233rd anniversary of the foundation of the United States. We might also celebrate the 34th anniversary of Justice Scalia’s unanimous confirmation on that day. Readers might want to remember that “unanimous” the next time they read some left-lurcher calling Antonin Scalia a ‘hard right extremist’. That pejorative term is intended to discredit the Justice’s views without discussing what they were. Readers who are interested can order the new edition of his A Matter of Interpretation, and the newly released Law, and The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. Ruth Bader Ginsburg’s (RBG) My Own Words (2018) would provide contrary views on many issues.

Ruth Bader Ginsburg Death Day, following closely on Constitution Day, ensures a torrent of discussion, debate, fury, and political fatuity over the coming weeks. Don’t look for much constitutional analysis. The United States Supreme Court is an arena of combat over political power. Brian Fallon, who served as press secretary for the Clinton campaign, has tweeted a challenge that tells us what to expect. “Any Supreme Court with a Trump justice confirmed to Ruth Bader Ginsburg’s seat at this point in the calendar,” Brian tells us, “would be fundamentally illegitimate, and Democrats must be prepared to act accordingly,”

That “act accordingly” sounds a little threatening. Other tweet-fiends have been more explicitly threatening. Powerlineblog.com has collected radical tweets promising to burn down the senate, to riot, to burn down everything. The uckwords are flying are around twitter space like debris in a cyclone. Granted, fury on the Internet is rarely enacted in real life, but we get a sense of the emotional intensity that will drive this issue.

Mitch McConnell and his GOP senate caucus will be accused of sixteen varieties of hypocrisy for refusing to follow liberal guidance in choose Ginsburg’s replacement. That won’t bother Mitch at all. He’ll just accuse the liberals of the same damn thing. Both sides will be right, because neither side party wants to admit that the struggle is about the acquisition and exercise of political power not about legal or ethical interpretations.

The controversy about the legitimacy of an immediate nomination is not a constitutional argument. Fallon is not isolated and alone in demanding that Trump hold off on nomination until the November elections. Senator Cruz points out that four-four split in the Supreme Court could be disastrous in the electoral outcome is disputed and the Court is called up to adjudicate the results. But the Democrats won’t be deterred.

The oddest argument for delaying is that the dead Justice wanted the decision about her replacement to wait until after the election. This may be persuasive to her many adoring fans, but it has no logical or ethical weight. Hillary Clinton doesn’t bother with RBG’s last wishes. “The Democrats who are in the Senate will have to use every single possible maneuver that is available to them,” she demands, “to make it clear that they are not going to permit Mitch McConnell to enact the greatest travesty … Let’s not give an inch in the face of the kind of hypocrisy that met President Obama when he tried to fulfill his Constitutional obligation and appoint Merrick Garland to the Court.”

Achieving an operatic intensity, our former should-have-been president, declared that McConnell’s refusal to seat her former rival’s choice was “truly wreaking havoc on our Senate and on our norms, our values, and I would argue, on the underlying original intent of the Constitution and the founders.”

McConnell has nothing to say about the original intent of the founders. Americans gave the GOP a Senate majority he declares “because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary … Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Leaving condolences for a little later the Democrats’ Senate leader Chuck Schumer immediately revealed what will become the prevailing liberal position on filling the new vacancy on the court. “The American people,” Chuck solemnly asserted, “should have a voice in the selection of their next Supreme Court Justice. Therefore, the vacancy should not be filled until we have a new president.” If we take the exact meaning of this statement we must conclude that a “new” president could not mean the incumbent scoundrel. Allow Chuck a little verbal carelessness, it won’t negate the fact that the New York senator wants a supreme court inclined leftwards.

James Madison one of the giants among our “Founding Fathers” explained the Constitution’s system of a division of powers with built-in checks and balances as a device for insuring that “ambition will check ambition.” Pause here and pay close attention. Madison did not talk about the good guys checking the bad guys. He did not believe that any politician or group of politicians could be allowed unrestricted power. Nor did he believe that it would be enough to enact a law denying them such power. He hoped that ambition, not laws, could be put to work to contain ambition.

“If men were angels,” Madison elaborated, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The traditional conservative Republican belief in limited government inclines them to depend on the Constitution to limit government growth. The liberal Democrats are inclined to regard a conservative Supreme Court as an obstacle to the growth of governmental power. That is what the contest is really about. It is not a competition to decide who is the biggest hypocrite.

John Frary of Farmington, the GOP candidate for U.S. Congress in 2008, is a retired history professor, an emeritus Board Member of Maine Taxpayers United, a Maine Citizen’s Coalition Board member, and publisher of FraryHomeCompanion.com. He can be reached at [email protected]

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