“A long habit of not thinking a thing wrong gives it a superficial appearance of being right.”
— THOMAS PAINE
November 2022

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Only We Can Fix It

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate — we can not consecrate — we can not hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Abraham Lincoln at Gettysburg
November 19, 1863

“But I think the American people expect more from us than cries of indignation and attack. The times are too grave, the challenge too urgent, and the stakes too high to permit the customary passions of political debate. We are not here to curse the darkness, but to light the candle that can guide us through that darkness to a safe and sane future. As Winston Churchill said on taking office some twenty years ago: ‘If we open a quarrel between the present and the past, we shall be in danger of losing the future.’”

John F. Kennedy accepting his nomination, 1960

These inspired political speeches, a century apart, one given by a Republican, the other by a Democrat, both reject the politics of vengeance. Fast forward to today:

Colorado representative Lauren Boebert dismissed calls for gun law reform in the wake of the school shooting in Uvalde, Texas, because the country “didn’t ban planes” after the 9/11 terror attacks. Speaking on Fox News’ Hannity in the wake of the massacre at Robb Elementary School, which left 19 children and two adults dead, the Republican congresswoman suggested the attack showed that gun-free zones are “deadly” and that bringing in stricter firearms laws would also not work as “we cannot legislate evil.” Boebert went on to suggest that the Democrats are attempting to use the tragedy to push “their radical political agenda,” and bring in stricter gun laws.

And Marjorie Taylor Green:

“She’s a traitor to our country, she’s guilty of treason,” Greene says in a video, which CNN first reported. “And it’s, uh, it’s a crime punishable by death is what treason is. Nancy Pelosi is guilty of treason.”

Hang on, the circus is coming back to Washington. Yet there are things to be done.

Estimates are that $17 billion was spent by campaigns and Political Action Committees in the midterms we just survived. The floodgates of political contribution flew open after the Supreme Court decided Citizens United, a decision aimed at enhancing political speech. But the unintended consequences have been enormous. Citizens United should be overruled. That case should not enslave our politics to fund-raising.

The Court historically treads lightly in overruling its own decisions. Its legitimacy depends on the Court being, as Professor Alexander Bickel called it, The Least Dangerous Branch. In the Supreme Court’s recent decision overruling Roe v. Wade, Justice Alito wrote an extended treatise on overruling Supreme Court precedent and the relevance of stare decisis in constitutional cases. While the decision overturning Roe was urgent and political, Alito wrote that the central question in overruling is whether that would be justified or even required by the history and traditions of the nation, whether it would be fundamental to our scheme of ordered liberty.

The entire U.S. economy at the time the Constitution was ratified was almost certainly smaller than $17 billion in then-current dollars. The framers would undoubtedly be shocked at the cost of elections today. Readers of this column need no education in the reality of fund-raising for elected officials. A member of Congress has barely enough time to unpack before having to return to the fund-raising trail. Whether they’re on the left or right wing, major donors directly and through PACs get access to the candidates who need their money. And donors rarely give only through the goodness of their hearts. Some do it for the money, looking for favorable legislation in their economic interest, some do it for fervently held political principles they want to enshrine. But few, if any, donors contribute merely as a civic duty, at least for big money donations. Citizens United waved off the possibility of undue influence, blandly and naively claiming that the antidote to such speech was more speech. The question is not who is speaking, or what is being said. The question is the scale of giving. That has nothing to do with our scheme of ordered liberty.

The same is true about guns, where the seminal and expansive Second Amendment case is District of Columbia v. Heller. That case should also be overruled. It has hamstrung gun reform and widened the hole through which wanton murder marches on. Looking, as the judicial originalists do, to the eighteenth century world of the Constitution or the subsequent Fourteenth Amendment, things have changed. There have been 600 mass shootings in the US in 2022, 35 in schools. Through October, more than 2,600 people have been injured and 671 people have died. The US leads the world by far in the number of school shootings, next is Mexico with 8. There is simply no way the founders could have meant to extend the Second Amendment’s Constitutional protection to all this, no way the right to bear military-grade arms and body armor is somehow baked into that foundational document. Judicial embrace of a wooden and literal reading of the Second Amendment not only ignores accurate history but also makes the Constitution into a death trap. If Justice Alito or any others in the Heller majority need to be persuaded that domestic disarmament has nothing to do with our scheme of ordered liberty, I’ll be glad to help them walk around Chicago at night.

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