Three Peas in an Awkward, Strict-Constructionist Pod: Justice Scalia, President Obama, and I

I think I can speak for a Supreme Court justice, the 44th US president, and myself in saying that we all believe Justice Scalia is an arrogant asshole who also turns out to be right some of the time.  Sorta.

All three of us have shown, either through words or actions, that we believe legislation by decree is a bad way to do business in a constitutional republic.  More specifically, ours.  For Scalia, this takes the form of judicial restraint.  For Obama, a reluctance to issue executive orders on controversial issues. (Note: reluctance, not refusal.). For me, general rambling to co-workers and friends on this topic.  We all approach this from different POVs but come to the same conclusion.  For the president and me, an appreciation of the fact that what one to nine people have done, one to nine OTHER people can undo.  For Scalia, it's the usual complex law professor system of levers and pulleys, that all leads back to the usual Godhead complex some have for our founding fathers.  A subject on which my own views are complex, and I won't even begin to discuss here.  Anyway, we all agree.

Which brings me to the heart of the matter.  Something else we all have in common: we're all strict constructionists*.  Scandal!  Liberal heretics!  Fire! Ruin! Un-friend!


Admission: I have not poured over the various articles, essays, opinions written by or about President Obama and I'm sure there are plenty.  But I know I his opinion on his own executive powers and I believe that gives me enough insight to imagine his true (*as if I actually know anything) opinions on such matters.  I know that I am one.  But again, here's where we differ from Scalia.  The President and I simply don't trust anything but what has been written down and approved and ratified into law/amendment.  Anything else is an opinion, that's all.  With no more real weight or substance than Jerry Springer's Final Thoughts at the end of each show.  A Supreme Court opinion has no more weight than the Executive or Legislative branches allow it to have and double vice-versa.  We can reach all the way back to President Andrew Jackson's "[they] made [their] decision; now let [them] enforce it" but I think examples of one branch or another acting in complete contempt of precedent or of simply violating the separation of powers are numerous enough and/or commonplace enough now that I don't even need to list them here.    

We're strict constructionists precisely because we want reform/progress to be not only meaningful but also long-lasting.  I can understand how progressives get frustrated at the snail's pace of progress which is the price we pay for a federal system of stability and peace (note: this trade-off is a post onto itself, and, quite a bargain IMHO) and naturally reach for any kind of "shortcut."  I get it.  I honestly do.  There are plenty of examples where these fiat actions have made long-lasting change in America and for the better.  But then there are plenty whose change lasted the length of a breath (Roe v. Wade) and is to this day being undermined by the other branches.  Which is not to say that the decisions are wrong or incorrect, it is the act of ruling by decree that is inherently flawed and illegitimate in a representative democracy.

The truth is I think there are many many more of us "liberal strict constructionists" out there then any of us will ever acknowledge and the real question is why we are so hidden.  The answer is simple: we are wretched wretched hypocrites.  We want to be able to revel in all the victories that have been reaped by Living Constitution theory, even while we know them to be fruit of a poisoned tree.  Even though we know that they are possibly fleeting and will one day provide the exact opposite of stability and closure.  Because, deed  down we also want a shortcut.  Who wouldn't?  Doesn't mean it's the right course of action.

So, when President Obama refuses to write an executive order prohibiting discrimination against LGBT employees or I have to argue that a 5-4 Supreme Court ruling that grants marriage equality should not in any way slow down the legislative march and should not honestly be a goal in the first place for the movement, it is not because of a lack of progressive POV or lack of willpower or indifference or whatever else is thrown at the President's name to see if it sticks.  It's because he knows that a real victory in a democratic republic does not get heralded by a single person or even a handful of voices saying "yea."  It is a chorus of "yea".   A booming, swelling sound that lifts the tide and drowns all doubts in its wake.      

* I know that Scalia considers himself an "Originalist" and I know there are articles upon articles explaining the difference.  It's a shorthand.  Blame Reagan.

Update: A quick search finds this damn near perfect quote from a speech back in November:

"THE PRESIDENT:  And somebody keeps on yelling, “Executive order.” (Laughter.) Well, I’m going to actually pause on this issue because a lot of people have been saying this lately on every problem — (laughter) — which is — just sign an executive order, and we can pretty much do anything and basically nullify Congress. And unfortunately –

AUDIENCE MEMBER: Yes!

THE PRESIDENT: Wait, wait, wait, before everybody starts clapping — (laughter) — that’s not how it works. We got this Constitution. We got this whole thing about separation of powers and branches. (Applause.) So we got to — there is no shortcut to politics. And there’s no shortcut to democracy. And we have to win on the merits of the argument with the American people. As laborious as it seems sometimes, as much misinformation as there is out there sometimes, as frustrating as it may be sometimes, what we have to do is just keep on going, keep on pushing. (Applause.) And eventually, we move in a better direction.

That’s been true for the first five years of my administration. When folks said we couldn’t end “don’t ask, don’t tell” — in fact, somebody — a bunch of people yelled, “Executive order.” (Laughter.) I decided, well, let’s try to actually pass a law. And we did."