Democrats are Wise Not to Fight Gorsuch

If Senate Democrats succeed in forcing the Republicans to change the filibuster rules to confirm Neil Gorsuch, not only is there another Regressive justice on the court, but if Ruth Bader Ginsburg, Steven Breyer, or Anthony Kennedy are unable to serve while unpatriotic Republicans control the Senate then a Regressive majority will have America partying like it’s 1789.

The Court’s balance then becomes four Regressives, two Moderates, and three Pragmatists, bringing the Court to a dangerous place not seen since the ruling in Dred Scott.

Regressive justices Samuel Alito, Clarence Thomas, and late Scalia all share a judicial philosophy tethered to the late 1700s. In short, they believe in a narrow interpretation of the nation’s founding document based on the original intent of the framers. The best example of their style of ruling can be found in Scalia’s searing dissent in Obergefell v. Hodges.

Scalia plainly ignored the 14^th Amendment when authoring his dissent. A cursory reading of the 14^th Amendment makes clear that all American citizens are guaranteed equal protection under the law. It’s as plainly written as anything from 150 years ago could be. Scalia’s dissent likened the Majority’s dissertation as work of “hippies” while failing to acknowledge the structural inequality existing in a country where heterosexual couples can enjoy all the rights and privileges of legal marriage while homosexual couples are relegated to “Civil Unions” and “Domestic Partnerships.”

Sounds a lot like having to ride in the back of the bus and drink from different water fountains, eh?

Regressives like Scalia believe that unless the Constitution specifically delineates a legal idea, then that idea is to be left to the people to decide. As James Madison wrote in Federalist 51, “If men were angels no government would be necessary.” Since Madison wrote the Constitution, he probably understands it’s intent better than the late Justice. The idea of leaving interpretations of legal rights up to voters is galactically stupid – if it were up to voters, then Linda Brown would have spent her academic career in segregated schools; women would not have the right to vote, and the 13^th, 14^th, and 15^th Amendments never would have been passed.

Regressives fail to understand that people by their very nature are abhorrent, selfish beings who only seek their own advantage regardless of how it affects others. It is legality and morality curbing this impulse. Frankly – anyone who wants to live in a land governed by a Regressive interpretation of the Constitution submits themselves to the tyranny of the voting majority.

Do a Google search on how that’s worked out.

Pragmatists are those who take the original verbiage of the Constitution and apply it to modern issues. These are justices such as Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan but probably the greatest of all Pragmatist justices is Earl Warren.

Reviewing the differences between Brown v. BOE and Plessy v. Ferguson, the essential differences between the two schools of legal thought are most transparent. Plessy is best summarized as “separate but equal” and as long as facilities for both races are of equal quality then the Constitutionality of Jim Crow is justified. That’s a literal reading of the Constitution – nothing in the founding document states “everyone must have equal access to everything.”

Brown upended that ruling using by applying the Constitutional standard of equal protection and summarized beautifully says “separate but equal is unequal”, e.g. two different sets of bathrooms creates a second class of citizenry. That’s pragmatism. In 1789, it was accepted that African-Americans were slaves and their condition wasn’t to change. Until it did thanks to the Civil War and the 13^th, 14^th, and 15^th Amendments.

Ditto for gay rights. The founders never conceived of a world where homosexuals could live outside of the closet. Pragmatic readings of the Constitution apply its values to the world as it is today – not as it was in 1789 as Regressives so yearn for. Obergefell v. Hodges is the perfect example of Pragmatism. The law is applied as written to a modern situation.

Moderates, of course, are those who blend the two schools of thought. The reason why John Roberts and Kennedy are in this category is each authored opinions rankling both sides of the judicial spectrum. Roberts earned the ire of Republicans with his masterful opinion on the Constitutionality of Obamacare.

Now we’re left with Gorsuch. He’s clearly a qualified jurist though some of his notable rulings rightly earn the quizzically raised eyebrow. He’s replacing the strident Scalia. Gorsuch is not as nefarious as Robert Bork and frankly appears more pragmatic than Scalia. That being said, to classify Gorsuch as anything besides Regressive is intellectually dishonest.

Ultimately, Democrats are foolish for dying on Gorsuch Hill. Democrats are gambling that by changing the rules of the Senate that Republicans will have a Pyrrhic victory. That’s not the case. Not when there’s a possibility over the next four years that a Pragmatic justice can be replaced with a psychotic Regressive such as Alabama’s Bill Pryor. If you think Gorsuch is scary – Pryor makes the white-haired Coloradan look like the second coming of Louis Brandeis.

Part of politics is picking your battles.

This battle is not the one for Democrats to fight. Let Gorsuch through – he’ll get a 52-48 vote which will be embarrassing enough – and live to fight another day while praying that Breyer, Kennedy, and Ginsburg have many days ahead of them.

Time For Democrats to Be Patriotic

Branding in American politics is everything – get branded as a liar, or crooked, or low energy, and these charges dog your campaign because the narrative takes on a life of its own. Donald Trump exploited his branding expertise to win the Presidency and in the process exposed a pervasive stereotype that delegitimizes the Democratic party: Only Republicans love America.

Let’s be honest Democrats, since soon after 9/11, every time we saw an American flag on a truck or a home the flag bearer wasn’t to be trusted – they stood against gay marriage, choice, were pro-war, and anti-Muslim.

During the Obama years, these flag bearers were primary conduits of the flagrantly racist birther lie. The American flag’s pairing with the modified Gadsden flag denoted angry, older white people unable to cope with the Head of State being a bi-racial man with the middle name of “Hussein.”

Democrats missed the opportunity to re-brand patriotism.

Republicans used the last 15 years to brand Democrats as people who apologize for America thanks to their abhorrence of the Constitution.

The Trump campaign and Presidency brings the Democrats’ inability to properly brand their patriotism into stark focus.

Here’s the difference: at Trump’s Mar-A-Lago estate, he flies an enormous American flag. The flag is so large the Town of Palm Beach warned him and eventually instituted daily code violations due to the flag being oversized. Trump’s response was telling the town to send him a bill. 

Democrats chortled at the billionaire’s brashness, but it established his patriotic bonafides.

Quick – name a Democrat wrapping themselves in the American flag?

You can’t.

However, losers see difficulty in opportunity – champions see opportunity in difficulty.

Here’s how that applies to Democrats – it’s time to wrap yourself in the flag and the Constitution. It’s time to articulate what REAL patriotism is.

Real patriotism is not claiming to love the Constitution while using it as a cudgel to deny people the right to vote, equal pay, and civil rights including marriage.

Real patriotism is not flying the American flag and telling people who want to come here to get out.

Real patriotism is not claiming to “support the troops” and excitedly sending them into conflict zones failing to serve the national interest.

Real patriotism isn’t whining about taxes being confiscatory while simultaneously complaining no one helps each other anymore.

Real patriotism has nothing to do with firearms.

What is real patriotism?

Real patriotism is flying the American flag along with the flag of your ethnic origin. E pluribus unum, bitches.

Real patriotism is fighting for equal rights as the Constitution clearly dictates not only in the Preamble but in the 14^th Amendment.

Real patriotism is when you have a little more fortune than others, paying your fair share to help those who didn’t win life’s lottery.

Real patriotism is pushing for equality of opportunity for those in poverty and those marginalized by an unjust system.

Real patriotism is fighting for every citizen to have the right to vote – including ex-convicts who have paid their debt to society.

Real patriotism is exhausting every single peaceful way to avoid sending our military into danger and if they must be sent into danger, it’s something serving humanity.

Real patriotism is knowing your roots as an immigrant and throwing open the doors for those who are looking for the same path your ancestors took.

Have you heard Democrats speaking in these plain terms? Me neither. I don’t have all the answers, but I do know a robust debate on patriotism is needed. The Republican idea of American exceptionalism and exclusivity is antithetical to the American ideal. The framers were men of great intellect but great flaws.

The idea of Constitutional literalism espoused by Ted Cruz and Rand Paul means African-Americans are 3/5 of a person and only white men who own property are allowed to vote.

Doesn’t sound like America to me.

It’s time for Democrats to embrace patriotism. Fly American flags and talk about how this nation is great and will be greater as we move forward and embrace equality for all. Our houses and cars must be adorned with the flag. We must constantly talk about how this country, despite its current political climate, is the best hope for people seeking a better life. Furthermore, we must talk about the Constitution as a living document holding citizens and institutions accountable.

Democrats have done a lousy job being patriotic. Patriotism is not the virtue of the vicious as Oscar Wilde once wrote – instead it’s a love of something bigger than yourself – your country. Loving America and wanting to change America so future generations of Americans don’t struggle thanks to antiquated ideas are not mutually exclusive.

If it was the case that loving America meant keeping it as is, Lincoln never would have freed the slaves.

The Bill of Rights would not exist.

Women would not be allowed to vote.

The Civil Rights movement never would have commenced.

Love wouldn’t be love.

The difference between Republicans and Democrats regarding patriotism is simply this: Republicans long for an America of yesterday because, “those were the days.”

Democrats long for a more perfect union because being patriotic means loving something enough to point out its shortcomings and working diligently to correct them.

Now it’s time for Democrats to wrap themselves in the flag while doing it – for they are the real patriots.