Tag: First amendment

The Voting Rights Scam

Where to begin? Let’s start with President Joe Biden’s over-the-top rhetoric about Republican resistance to H.R.1, the constitutionally dubious “For the People” Act the House passed that among other things nationalizes elections. Its dubious constitutionality partly owes to Section 4 of the U.S. Constitution which reads:

“The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” 

The Bill is such a constitutional nightmare—and an assault on free speech and federalism—that both the ACLU and the Institute for Free Speech have objected to it. Their respective briefs can be found here and here. 

Let’s move beyond the constitutional objections and think about what the allegedly moderate Joe Biden actually said in his quest to get H.R.1. enacted into law. Among other things, he said that recent laws either passed or being considered in state legislatures (e.g., Georgia, Florida and Texas being prime examples) are the most “significant threat to our Democracy since the Civil War”. 

That would make it a greater threat than Woodrow Wilson’s habit of tossing political opponents in jail. Or Watergate. Or World War II. Or the internment of Japanese Americans during WWII. Or the Kill List that shows up on the President’s desk every day. Or the NSA’s domestic spying habits. Or the use of the IRS as political enforcer. Or the phony FISA warrants proffered by the FBI during the various investigations of Donald Trump. Or FDR’s Court Packing scheme. 

To continue, Biden went on to say that the bills that H.R.1. is meant to counteract represents 21st century Jim Crow; are “subversion and suppression” and a sure sign of of an emerging autocracy. 

So let’s step back for a minute and consider what the misnamed “For the People Act” actually proposes to do to “protect our democracy”. David Harsani of National Review points out: “the For the People Act would force states to count mail-in votes that arrive up to ten days after Election Day; compel them to legalize ballot harvesting; ban them from having voter-ID laws; empower bureaucrats to redraw congressional districts; require states to allow felons to vote; undermine free-speech rights by imposing a new array of burdens on civic groups, unions, and nonprofit organizations; force states to count ballots cast by voters who are in the wrong precincts; prohibit election officials from reviewing eligibility of voters; and bar officials from removing ineligible voters from the rolls. See article here. 

Since most of the requirements specified in the 800 page H.R.1. are new, it’s hard to understand why Democrats who got elected without the new requirements are all of a sudden decrying those very same election laws. And not to out too fine a point on it, even after the supposedly authoritarian Republican laws got enacted, the voting systems of Florida and Texas have far more liberal rules for voting than does, for instance, Delaware—the state that spent 50 years or so electing Joe Biden to he Senate. That’s where he made friends with such notable defenders of minority rights as Herman Talmadge and Strom Thurmond among others. So it’s hard to see where Mr. Biden’s principled objection lies.

It should be pretty obvious where the Democrats are headed here. They are setting the stage to challenge the legitimacy of the 2022 and 2024 elections—if they lose. It is a cardinal rule, held dear by by the Democratic Party leadership, that the definition of a legitimate election is one in which they win. After all, they challenged the legitimacy of the Presidential elections of 2000, 2004 and 2016. Not to mention that Stacey Abrams has yet to concede the Georgia gubernatorial race of 2018. 

The assault on the constitutional order being orchestrated by the Democratic Party leadership is pernicious. In its stealth the Act stands in contrast to Donald J Trump’s final frontal assault on the rule of law, culminating on January 6, 2021. And it is a disgrace that only a tiny segment of elected Republicans are willing to acknowledge the blindingly obvious fact that Donald Trump tried to overturn an election by the use of force.

On the other hand, the progressive assault, in which the whole of the Democratic Party leadership is complicit, is but a piece of a longer term project targeted at the institutions of a free society, most particularly the first amendment. At root that makes the political question rather stark. Do you wish to vote for a bunch of cowards who are terrified of their base? Or do you wish to goose-step your way into a future run by the latest bunch of predictably certain-to-fail utopian saviors whose authoritarian tendencies reveal themselves daily?

Or you can adopt a sensible approach and support classical liberals independent of their of party status. 

JFB

The Moderate Mr. Biden and Other Fantasies

During the recent presidential primary and election campaigns the underlying question concerning Joe Biden was, given his druthers, how would a President Biden govern? One of the more interesting fantasies marketed by the Biden campaign was (and remains) that President-elect Joe Biden is a moderate whose election presages a return to normalcy. 

While it is true that Biden may be less radical than members of “The Squad”, that’s really not saying very much. 

The key to the Biden candidacy and likely governance strategy lies in the profound but under appreciated truth that politics lies downstream from culture. Today it is culture that dominates elective politics and in ways that are not obvious to most. That is not an accident. In campaigns, politicians speak in gauzy generalities and use cultural symbols to deliver emotionally satisfying messages designed to bring voters to the polls. But those symbols are typically anodyne and don’t really say much about how, if elected, a politician would govern. 

There is a big difference between what politicians say and what they do. Former Governor of New York, Mario Cuomo, used to say that “… you campaign in poetry, but govern in prose”. Which is where interest groups and party organization come into play. 

On the stump politicians routinely make utterly implausible promises that they inevitably fail to accomplish. But in the process the successful ones do manage to hold on to their base of support.  They do this by taking care of the interest groups that provided them with organizational and financial support.

These politicians go by the old adage “Don’t forget to dance with the girl who brung ya.” They take care of their interest groups–the girl who brung them. Those groups have specific policy goals that they would like to see accomplished, and they are not about to be satisfied with pie-in-the-sky rhetoric. They want results. 

In part, this is what accounts for the wide chasm between what politicians campaign on and how they actually govern.  The masses get the rhetoric; the interest groups get the policy. The mechanism that facilitates the process–the difference between campaigning and governance is the bureaucratic apparatus of the Administrative State. It is through Agency rule-making that interest groups can maximize their leverage and achieve their goals without necessarily having to petition Congress. 

The emasculation of Congress and neutering of democratic choice is the direct result of the progressive faith in rule by disinterested experts perched on bureaucratic rungs of power. The rising power of the bureaucracy over American life crucially depends on several factors. First, in its desire to escape accountability career politicians have continued to delegate massive amounts of decision making authority to Agency bureaucrats. Probably well above and beyond what is constitutionally permissible under the non-delegation doctrine. 

Second, generally under Chevron deference (1984), the courts are bound to accept an Agency’s interpretation of an ambiguous statute within its jurisdiction as long as the interpretation is not unreasonable. 

Third, the continuing politicization of language combined with deliberate use of ambiguity and the denial of the idea of fixed meaning effectively gives Agencies carte blanche to rewrite entire laws well outside their original intent. 

These developments have placed enormous and increasing power in the hands of the Executive Branch. Which brings us to the question of President-elect Biden’s allegedly moderate instincts.  

Let’s take a case in point. In the matter of transgender rights Biden has promised to use Executive power to “…restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity.” He further promises to commit to passing the Equality Act which according to CNN “…would protect against anti-LGBTQ discrimination in commercial and public life, with no religious exemptions.” 

Let’s take a look at the implications of this. The moderate Mr. Biden has clearly said that he believes that sex differentiation is simply a cultural construct; that your sex is not an objective reality, and that your sexual identity is simply what you declare it to be. 

Here Biden has clearly hitched his wagon to the trans activist train.  Rather than call gender dysphoria what it is, he has chosen to use the coercive power of government to re-shape society according to the world view of post-modern cultural de-constructionists. This, even though real world evidence shows that sex differences are embedded in our DNA. For instance, all else equal men have greater bone density and lung capacity. These differences matter, especially in sports. And women’s sports are being devastated by men competing as self-identified women, including those who have transitioned. 

For example, the British Journal of Sports Medicine found that trans women had a 12% advantage across various exercise metrics a full two years after hormone treatments to suppress testosterone. (Before treatment they had a 31% advantage). The academic journal Emerging Topics in Life Sciences says that “Accepted science regarding male and female physiology suggests that trans women have an advantage over their cisgendered counterparts.” 

Most important is that this debate is not about women’s sports at all. It is really about the re-ordering of society based on the idea that biological sex is unimportant. And that re-ordering would come from bureaucratic rule-making designed to alter the culture and the language we use to frame issues.

Anyone who doubts this should consider the implications of the H.R.5 —the Equality Act, enthusiastically supported by Joe Biden.  Basically the proposed Act amends the Civil Rights Act of 1964 to prohibit discrimination on the basis of sex, sexual orientation, gender identity or a sex stereotype. Further, “SEC.1107.CLAIMS” goes on to say “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”.

Which is to say that in direct defiance of the First amendment, religious organizations would be have to change the practice of their religious beliefs in order to conform to the requirements of federal anti-discrimination law. Which law will be interpreted by the bureaucracy in the rule making process. And if there is any doubt as to the upcoming Biden Administration’s intentions here, keep this in mind. Biden has already nominated Xavier Becerra to be HHS Secretary. Becerra is an abortion rights fanatic who is currently suing the Little Sisters of the Poor over their continued refusal to finance employee purchases of contraception and abortafacients. 

It actually gets worse. Biden believes that your rights are the ones that are given to you by government. In his recent criticism of Judge Amy Coney Barrett he said, according to NBC News, “she didn’t lay out “much of a judicial philosophy, in terms of the basis upon which she thinks, (sic) are there unenumerated rights in the constitution.”

Not surprisingly, Biden, whom no one has accused of being exceptionally  bright, has it exactly backwards. The ninth amendment, which is the one in the Constitution that discusses enumerated rights, reads as follows. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added).  That of course means that the enumerated rights doctrine is meant to restrict the power of Government, not people, who retain all their inherent rights. 

So when you put it all together, the supposedly moderate Mr. Biden has promised a cultural revolution to upend civil society by using the power of government to impose a wholly artificial definition of sex on it. He promises to attack the First amendment guarantee of freedom of religious practice. And he is of the belief (to the extent he has any) that our rights are not inherent; they are the ones government deigns to bless us with. 

Quite the moderate. 

JFB