Buchanan Spills the Beans on ‘Judicial Dictatorship’

Calling for “massive disobedience” in response to the Supreme Court’s inaction on same-sex marriage last week, Pat Buchanan, perhaps unwittingly, gives up the game in an extended rant against “judicial dictatorship.” Unlike so many others who take the same position, he’s willing to admit that he’d say the same thing in all the other historical cases where his ideological forebears did the same. And he spews some seriously weird history along the way.

Do the states have the right to outlaw same-sex marriage?

Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes.

No, states do not have that right. In fact, states don’t have rights at all. Individuals have rights, governments have authorities.

But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact.

Yeah, like they’ve been doing for more than 200 years now. Like the Constitution gives them the authority to do. You remember the Constitution, right? It’s that document you claim to love so much but are highly ignorant of.

The instrument of revolution is judicial review, the doctrine that makes the Supreme Court the final arbiter, the decider, of what the Constitution says, and cedes to the court limitless power to overturn laws enacted by the elective branches of government.

Jefferson said that to cede such authority to the Supreme Court “would place us under the despotism of an oligarchy.” Was he not right?…

Each branch of government, wrote Jefferson, is “independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

Jefferson was an opponent of judicial review. But remember, he wasn’t there for the writing of the Constitution, he was in France. The founders who did write the Constitution saw fit to give the Supreme Court the authority to negate laws that were passed democratically because they knew that pure majoritarianism would not protect the rights of the minority. As Hamilton wrote in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

It does no good at all to declare that individuals have rights that inviolable, then subject those rights to the will of a simple majority.

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose.

Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Wait, what? Is that what happened? I seem to recall that mobs in the south committed that very “massive disobedience” in response to desegregation by blocking school entrances and keeping black children from going on, which required sending in the National Guard to prevent them from continuing to destroy the lives of those children. And guess what? Those people made the exact same argument that Buchanan is making, that “judicial dictators” were destroying their “freedom” to continue the discrimination that had gone on for so long.

And today, desegregation is viewed nearly universally except by the most backward and racist Americans as an important step forward for civil rights. Even the most conservative legal scholars no longer try to argue against it, but they continue to make the same argument against every other civil rights advance. The same is true of Loving v Virginia, of course.

They keep recycling the same arguments (tradition, judicial supremacy, etc) while pretending that they would not have made those same arguments against the previous advances in civil rights that are now almost universally accepted. But Buchanan is honest enough, and racist enough, to admit that he still thinks desegregation was a case of un-democratic “judicial dictatorship.” Hell, he’s even willing to admit that this whole “state’s rights” argument is really about refighting the civil war:

Ultimately, the failure is one of conservatism itself.

Indeed, with neoconservatives in the van, the GOP hierarchy is today in headlong retreat on same-sex marriage. Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians:

“American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.”

Yeah Pat, conservatives should just admit, as you’re willing to do, that they want to return to the pre-14th Amendment America, when equality was irrelevant as long as a majority of white people wanted it to be.

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  • Trebuchet

    Yeah Pat, conservatives should just admit, as you’re willing to do, that they want to return to the pre-14th Amendment America, when equality was irrelevant as long as a majority of white people men wanted it to be.

    FTFY

  • Chiroptera

    I always find it weird when giving individuals more liberty is called a “dictatorship.”

  • Ellie

    It doesn’t surprise me in the least that Bigot Buchanan would hold up Robert Lewis Dabney as some kind of ideal. Dabney was pro slavery until the day he died.

  • matty1

    @3 So was Buchanan. Now if only we could stop his zombie from continuing to make public statements.

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    Trebuchet at 1:

    No, whites. Trying to ignore white racism? White saleswomen were quite willing to make my mom, who was Mexican American, along with myself and my sister, who were little kids, wait until they served every white person in the store, even those who came after us, before they would wait on mom.

  • John Pieret

    I always find it weird when giving individuals more liberty is called a “dictatorship.”

    To right wing authoritarians, liberty is a finite resource. The more people of different skin colors, genders, sexual preferences, etc. have it, the less they have.

  • scienceavenger

    Let’s not forget that it is Buchanan, and his absurd run for president mucking up the ballots in Florida, that unwittingly was responsible for the George Bush presidency. No Pat for Prez, no Iraq war…

  • Michael Heath

    John Pieret,

    It’d be helpful to you to read the Alexander Hamilton quote carefully. In particular the part where Hamilton asserts the reservations of particular rights and privileges. That perspective is consistent with both the DofI and the U.S. Constitution, and contra your false claim the government creates rights that are ‘bestowed’ on us. Rather than the government infringing, ignoring, or protecting our rights.

  • rabbitscribe

    Congress: “No one born 11/2/1938 in Washington DC to a CPA and an RN may speak to or write for an audience of more than 100 people.”

    Buchanan: “That’s a Bill of Attainder and a First Amendment violation!”

    Congress: “We disagree. It could potentially affect other people than you. Also, we can impose reasonable limits on speech: false advertising, incitement to imminent lawlessness, people born 11/2/1938 in Washington DC to a CPA and an RN speaking to or writing for an audience of more than 100 people, that sort of thing.”

    Now what, Pat? Or short version: legislatures may not violate the Constitution. What if they do so anyway?

  • Michael Heath

    John Pieret writes:

    To right wing authoritarians, liberty is a finite resource. The more people of different skin colors, genders, sexual preferences, etc. have it, the less they have.

    It’s also a finite resource if government “bestows” our rights to us as you’ve previously argued. Of course I reject that premise as incoherent to the perspective used in the DofI and the U.S. Constitution. So I think you should reject it as well.

  • busterggi

    Why is it that unreconstructed Confederates like Buchannan reminder of of some other 20th century political movement that also cherished racism, mysogyny & authoritarianism?

  • Michael Heath

    Pat Buchanan distinguishes himself amongst conservative Christians.

    He has the rare quality where he sometimes actually considers what non-conservatives argues and provides a credible response. Typically we observe such people are incapable of doing the considering part, e.g., conservative Christians almost always avoid the fact the courts are using the equal protection clause of the 14th Amendment as justification that state governments are unconstitutionally encroaching on our liberties without having the delegated authority to do so. The scant few mangle the equal protection clause in order to claim it instead protects their privileges and not the equal protection rights of people.

    Sometimes Buchanan’s response is not in line with the conservative political agenda. But as we see here, he’s also perfectly capable of providing a rant that finely illustrates a typical conservative Christian argument.

  • Funny Diva

    No love for Justice John Marshall of the Supreme Court for making the Judicial Review implicit in the Constitution a reality?

  • D. C. Sessions

    @3 So was Buchanan. Now if only we could stop his zombie from continuing to make public statements.

    Why in the name of all that’s rational would you want to hush him up? He’s a perfect treasure for the non-wingnut population of this country: he actually says out loud what the rest of them are too prudent to admit is their actual platform.

    Shutting him up would be like getting rid of the rattles on a rattlesnake.

  • John Pieret

    Michael Heath:

    I’m sorry if I’ve upset you to the point that you are going to stalk me all around over this. But do note what Hamilton is saying (before the Bill of Rights was even proposed): the Constitution “contains certain specified exceptions to the legislative authority” or, in other words, it is the Constitution that is bestowing those rights on individuals. They do not exist in the aether, they are created by our government in the form of the Constitution.

    Now really, that’s enough of this. Please just agree to disagree.

  • EnlightenmentLiberal

    on the failure of conservatives to halt the march of the egalitarians

    Wait what? Equality before the law as a general principle is a bad thing, and conservatism is opposed to that? What the fuck am I reading? Wait.. of course that’s true. It’s just amazing to hear them openly say it.

    Reminds me of the French national motto, which AFAIK is a pretty good motto:

    Liberté, Égalité, Fraternité

    http://en.wikipedia.org/wiki/Libert%C3%A9,_%C3%A9galit%C3%A9,_fraternit%C3%A9

  • EnlightenmentLiberal

    @John Pieret

    That is contrary to the Federalist Papers and the widespread original understanding of rights by the writers of the constitution and others of the time, plus contemporary understanding of English common law, etc. Just saying.

  • eric

    Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians

    Wow. I totally believe that Pat would be racist enough to see the ‘egalitarians’ as the bad group in this story, but I am somewhat surprised he was willing to say it publicly.

    Another amusing thought on this quote is ‘oh, how the political parties have changed.’ The people leading that egalitarian charge? The Republican party. Nothern Dems were somewhat behind them, while Southern dems were generally on the side of Mr. Dabney. The Dems were the ‘conservatives’ in his story.

  • John Pieret

    EnlightenmentLiberal:

    That is contrary to the Federalist Papers and the widespread original understanding of rights by the writers of the constitution and others of the time, plus contemporary understanding of English common law, etc.

    I really don’t want to get into it and get Michael all stirred up again but, despite the soaring rhetoric of the Founders, the simple fact is that the notion that “rights” somehow exist separate and apart from our government, including the Constitution and the courts, is a kind of woo.

  • canadiansteve

    the simple fact is that the notion that “rights” somehow exist separate and apart from our government, including the Constitution and the courts, is a kind of woo.

    Thank you for pointing this out. It is a pet peeve of mine that so many people believe that rights can exist without a communal agreement on their existence (hey, let’s call this communal agreement a system of laws. While we’re at it, lets call the agents of law-making in this system of laws a government…)

    Anything else is just wishful thinking.

  • robertfoster

    But, but, but . . . didn’t Mitch McConnell recently say this was the BEST Supreme Court in generations? Now Pat says they’re a bunch of oligarchic dictators? Gentlemen, take ten paces, turn and shoot when ready. May you both hit your marks.

  • Michael Heath

    John Pieret quotemines Alexander Hamilton:

    do note what Hamilton is saying (before the Bill of Rights was even proposed): the Constitution “contains certain specified exceptions to the legislative authority” or, in other words, it is the Constitution that is bestowing those rights on individuals. They do not exist in the aether, they are created by our government in the form of the Constitution.

    No, “not in other words”. The words you need are what you left out.

    I’ll bold the relevant part of A. Hamilton’s quote for you, which by the way Ed already did in his blog post:

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    My argument here is not an idea I came up with. It’s part of even an introduction to enlightenment thinking and understanding the premises underlying and asserted in both the DofI and the U.S. Constitution.

    John Pieret writes:

    But do note what Hamilton is saying (before the Bill of Rights was even proposed)

    Your whoosh was felt here. The credible concern at that time about adding a Bill of Rights to the Constitution was that people would wrongly construe that the government had identified all our rights in any such bill and would then proceed to infringe upon or fail to protect other unumerated rights. Thus the reason for the existence of the 9th Amendment.

    We’re debating history here, not opinions. The facts are plain for those who’ve studied this history. And as I noted before, the rulings the courts publish use this very same framework – they do not claim the government creates rights as you falsely argue, but instead consider their obligation to protect such rights or whether the government has constitutionally delegated authority to infringe upon such rights.

    So again, I recommend reading rulings are about the infringement of rights, the protection of rights, or competing rights to get up to speed on a primary premise to understanding Western Civilization, American history, and the development of rights now encompassed in the U.N. charters on rights.

  • Michael Heath

    canadiansteve:

    It is a pet peeve of mine that so many people believe that rights can exist without a communal agreement on their existence

    This is a false representation of what’s in play here. The U.S. framers who asserted that our rights are inalienable also asserted that these rights were best protected with a ‘just government’ (the DofI argues for a certain standard of what is ‘just government’ and therefore has credible authority).

    Here’s the DofI where I bold the relevant section:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    and the Preamble to the U.S. Constitution:

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    So instead the framework is that government is instituted partly to protect our individual rights. And when a government fails to meet a certain standard, like the one argued for in the DofI, then the framers argued it was just to revolt or in the case of ratifying the U.S. Constitution, abandon the former government architected under the Articles of Confederation.