Liberty doesn’t need a strict constitutionalist. Liberty requires the Constitution be busted up

The rancor toward President Trump for his choice of Judge Brett Kavanaugh as the next member of the United States Supreme Court is no surprise. Democratic members of the U.S. Senate, the body responsible under the United States Constitution for confirming Mr. Kavanaugh, probably had their Twitter statements pre-written and ready to be unleashed onto cyberspace.

On the other side, Republican senators and voters were already praising Judge Kavanaugh as a strict constructionist, an individual who stays within the four corners of the Constitution when seeking a rationale for deciding whether an act by a party to the controversy before the court violated the Constitution. This type of conservative treatment scares liberals who apparently prefer treat the Constitution as a living document that can be stretched and molded to conform with the social norms and mores of the time.

Progressives have long championed using the Constitution as a tool for creating rights and classes out of thin air much like the Federal Reserve prints cash out of the ether. The past 65 years have seen society segmented by race, sex, sexual preference, religious preference, and commercial classes and the federal courts have been used as the meat cleaver for slicing and dicing American society into not so equal classes, at times not delivering the justice members of these classes seek. In the case of the Supreme Court, its decisions are binding on the entire country, and therein lies the problem. By issuing opinions on areas outside its jurisdiction, the Supreme Court and all its inferior courts have contributed to the creation of a society connected by top down values and laws and an allegiance to a single, inorganic fealty. The Supreme Court and all its inferior courts are contributing to the demise of liberty.

Regarding the federal courts’ jurisdiction, from Article III, Section 2:

“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies between two or more States; — between a State and citizens of another State; — between citizens of different States, — between citizens of the same State claiming land under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.

In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.”

The first line of Article III, Section 2, gives an opening to parties that may want to take a local grievance, say between a cake baker and a gay couple in a town in Colorado, and use the federal courts to create a law that becomes applicable to citizens living thousands of miles away from the incident. The rest of the article severely limits the federal judiciary’s involvement in private lives.
I don’t think the limits go far enough.

Ideally, I want to see individuals take back their sovereignty by settling as many disputes as possible privately, outside the State mechanism of a court. If a federal court is going to be involved in solving disputes i.e. those involving diversity of residence, it should, as it does now, apply State law to the controversy. Otherwise, the final appellate body in any intrastate dispute, criminal or civil, should be a State’s highest court. A dispute in Maryland shouldn’t be resolved by a federal court opinion that holds that the opinion is applicable in North Carolina, South Carolina, Virginia, or West Virginia. Federal courts should focus on controversies between the Executive and the Congress; between a State and the federal government; and between the States.

Kavanaugh’s views on abortion would be irrelevant of we knew that the federal court could not create national law out of local controversy.

The Sarah Sanders fiasco challenges the notion of free exchange of ideas and nation-state.

America’s hypocrisy when it comes to the freedom to exchange ideas was further exposed last weekend when Sarah Huckabee Sanders, press secretary for the White House, was asked to leave the Red Hen, a restaurant in Lexington, Virginia. According to The Hill.com, Mrs. Sanders along with seven members of her family, was asked by Stephanie Wilkinson, the co-owner of the restaurant, to leave the establishment because she took issue with the Trump administration’s policy toward transgender members of the military.  Listening to calls this morning to C-SPAN on the issue is giving me the sense of how increasingly polarized the United States is politically. It has me asking, “Are Americans really serious about the free exchange of ideas or is that just some Madison Avenue hype designed to maintain an artificial society?”

The first three words in the Constitution of the United States of America, “We the People”, seem farcical given this latest event. Yes, humans are expected to disagree, but the United States has been transmitting a message to the world that the choice to disassociate based on the groups you want to disassociate away from is somehow a bad thing and that real strength lies in diversity of people and ideas.  The Sanders event is an example that this creed is built on shaky ground. It seems more likely that Americans rather not share space with people who do not share their political beliefs or political lineage. “We the People” means, “We, a Particular People Who Have Taken Charge.” Inclusive means only including those who share your beliefs.

The State had to sell the notion that the disenfranchised were allowed to come to the party. The last thing the United States needed to see was its own version of Bastille Day on American soil. To keep the barbarians at bay the political elite needed a doggy bone and democracy has been that bone since the country’s inception.  But as the guise of democracy and its phony noble intent falls away, are the disenfranchised ready for a world that is not inclusive?

If Americans are serious about freedom of association and the freedom to exchange ideas, they must accept the freedom to disassociate and go one’s own way. The Left is afraid of such a mindset because disassociation means fewer people across which to spread the costs of unnecessary programs and fewer people towing their party line.  The Left has been historically aligned with freedom of thought, but their support for the co-owner of The Red Hen demonstrates to me that even they do not understand their equality standards and the artificial nature of those standards are coming back to harm them.

The co-owner of the Red Hen, again, took issue with transgender policy of the Trump administration and given the lack of anonymity that Mrs. Sanders could not avoid were able to single her out and direct a protest against Mr. Trump by asking her to leave.  Would the Left take issue with a restaurant owner who does not support the Democratic Party because of the party’s support for gay marriage but because she is aware that 90% of blacks support the Democratic Party decides to not serve them? The answer is yes and not because the Left would think the owner is wrong, but the loss of black votes stemming from any Democratic support for the restaurant owner’s free speech would cost Democrats at the polls.

I don’t believe the discussion on free association will ever end. Quite frankly it needs to continue and get louder.

Donald Trump and James Comey: Does uncouth equate to bad morals and impeachment?

In my best Heath Ledger/Joker voice, “Batman has no jurisdiction.” I think of this line today after reading a report in Reuters about former Federal Bureau of Investigations director James Comey’s assessment of the morality of current president Donald Trump. The book, set for release tomorrow, will detail Mr Comey’s four month tenure in the Trump administration. Mr Comey asserts that Mr Trump is morally unfit to sit in the Oval Office.

The assertion is likely to lift the spirits of many anti-Trump voters who have been hoping that the President’s alleged links to the Russian government will turn into a political noose and lead to an early exit from the White House. Mr Trump has been relatively out of the media spotlight for the past week given the Congressional hearings that were held regarding Facebook’s privacy shenanigans. He has managed to reassert himself quickly into the headlines with last Friday’s missile attack on Syria’s chemical weapon facilities. I suspect that attention will be diverted away from Syria long enough for Democrats to push their talking points and roil up their base.

So far the most tawdry event noted in Mr Comey’s assessment of Mr Trump is an alleged incident involving Mr Trump’s presence in a Moscow hotel room where two prostitutes were allegedly urinating on themselves. Being in the presence of this type of behavior would be off-putting to most Americans. Mr Trump has denied witnessing the event and Mr Comey admits he has no firm evidence the event happened or that Mr Trump was even present if the event happened at all.

One question that comes to mind is, assuming that the event occurred, should the event give buoyancy to arguments from the left that Mr Trump be impeached? My answer is no. Article II, Section 4 of the United States Constitution reads:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The event is alleged to have happened in 2013, almost four years before Mr Trump took office. In addition, if watching prostitutes pee on themselves in Moscow is legal, I see a very weak argument for convicting him of a crime. “Batman” has no jurisdiction in Moscow.

Another question I have is, what is immoral behavior and does such behavior disqualify a president? Morals are defined as standards of behavior or beliefs concerning what is and what is not acceptable for a person to do. Morals are personal codes until society expresses its disagreement with them and codifies that dissatisfaction in law or statute. As head of a democratic nation-state, Mr Trump is expected by many Americans to manage his personal code within the parameters of community expectations. For a man who reportedly has no problem expressing a tough guy Queens personality, being a boar may not go over well with a progressive socialite from San Francisco. Such behavior, whether it occurred prior to or during the presidency may considered disqualification as head of state, if not head of government.

Going forward, the allegations will not mean much for capital markets. They do not speak to Mr Trump’s management of public capital or the institutions that manage or influence the allocation or distribution of capital. The allegations do put a further dent in Mr Trump’s ability to persuade, probably the most important power a president has. And in the political marketplace, bad optics drives down a political actor’s brand and market value.