Progressives want to play Calvinball to remake the Constitution.
Calvin and Hobbes was a popular cartoon series about the fantasy life of a six-year-old brat and his tiger sidekick. Calvinball was a game with no set rules, except that Calvin — or on occasion, Hobbes — made up new rules to the game to give themself the advantage as the game was being played. It was funny as a cartoon; it is deadly serious when it is replicated in our nation’s politics, with progressives playing Calvinball to remake the Constitution.
Progressives are changing the rules about whether they must adhere to decisions of the Supreme Court. They would change the filibuster rule that has protected the minority in the Senate since about 1805. And Progressives want to make the Supreme Court into a permanent progressive majority. Indeed, the last time democrats acted with such disdain for the Constitution and the norms of this nation was when they believed Republicans would free the Democrats’ slaves.
The U.S. Constitution sets the boundaries within which our republic is supposed to function. For the past century, progressives have used the Courts and the extra-Constitutional regulatory bureaucracy to steadily remake those boundaries in contravention of the Constitution’s Article V. That article reserves the power to amend the Constitution solely to the citizens of the Republic acting through federal and state legislatures (or a Constitutional Convention), with not a judge, a regulator, nor President mentioned as having any role.
Had progressives won the Presidency in 2016 and, with it, the power to appoint a hard-progressive majority to the Supreme Court, they intended to complete their work of the past century. They were at the end-game and intended to give a full and final progressive rewrite of the Constitution. No one person spelled this out more clearly than Harvard Law Prof. Mark Tushnet in a 2016 post at the blog, Balkinization (h/t Powerline). In it, he gave a laundry list of ideological positions he wanted the Supreme Court to adopt as Constitutional Law. As Law Prof. Randy Barnett summed up Tushhnet’s progressive prescription for our Constitution:
As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.”
But Tushnet was right in principle. As I have long maintained . . ., the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. . . .
The progressive “ratchet” has now been slowed by several decisions of the Supreme Court — Dobbs (abortion), Bruen (2nd Amendment), and West Virginia (an outer limit on the power of regulatory agencies). But progressives, rather than acknowledge those decisions and address them through the Constitution’s Article V, are instead having a six-year-old’s temper tantrum, vowing to play Calvinball with our Constitution and related norms. Any rules that stand in their way are to be given the bums rush. Progressives fully intend to impose their will on this nation by raw power. They do so with no thought for the consequences. For instance:
New York passed a law within days within days of the Bruen decision, nullifying the Supreme Court’s decision and unconstitutionally burdening the rights of the citizens of New York under the Second Amendment.
The House Judiciary Committee has voted to pass out of committee a law that would ban AR-15’s and most other modern semi-automatic weapons despite the clear statement in Bruen that the Second Amendment protects all weapons in “common use.” And in terms of civilian-owned guns, there is nothing more in common use than AR-15’s.
President Biden has threatened to declare a “climate emergency” and assume dictatorial powers over our nation that King George III could only dream about, and all of which certainly defy Court’s holding in West Virgina. The progressive left expects Biden to unilaterally:
- Halt oil exports.
- End shale fracking.
- Stop oil and gas drilling in the outer continental shelf.
- Use the Defense Production Act to build green energy.
- Repurpose funds for disaster relief or military construction to build green energy systems.
And then there is the biggest Constitutional challenge of all — the left’s refusal to abide by Dobbs. Accoridng to the left, any justice who overturns a progressive precedent is an “activist judge,” and that is doubly true for the progressive sacrament of abortion. Progressives call this “activism” regardless whether the justices overturned precedent to enforce the Constitution as written or whether the precedent the justices overturned was itself an unconstitutional act of judicial legislation unmoored from the original intent of the Founders. It is truly Orwellian. But, on the basis of this and similar arguments, many progressives are quite willing to change the rules to pack the Supreme Court and give themselves, for however long the nation lasts after that, a permanent progressive legislative majority.
This is the stuff of adolescent tantrums and Calvinball. But Calvinball has no place in our nation’s government. These scum engaging in it are playing a very dangerous game. That said, it is not as if they have not done so before in our nation’s history.