What Lance Armstrong and Cliven Bundy and Sonia Sotomayor all have in common.

THE RULE OF LAW VERSUS THE RULE OF MIGHT MAKES RIGHT

There are legitimate and illegitimate ways to win a football game.  The legitimate way to win goes like this: There are rules, objectively and equally applicable to all participants, and you win by playing in accordance with those rules.

There are even rules for the rules.  They are established in accordance with the bylaws of the league, as established by those who founded the league, or as revised from time to time by the current owners (in accordance with previously agreed upon procedures).  If the bylaws of the league make sense, then proposed rule changes will be discussed and voted on during the off-season, when no one is sure who they will benefit.  The rules are not changed during the middle of a game.  During the game, the rules are enforced by the referees.  Sometimes the refs make bad calls.  But the teams readjust themselves, and determine who is currently in possession of the ball, in accordance with even the obviously bad calls.  They do so because that’s one of the rules, and because to do otherwise would prevent the game from being completed.  If one side, being told they had lost possession of the ball, were to line up in an offensive formation and keep the ball anyway, then the other team would soon disregard the calls they didn’t like.  And the game would devolve into a brawl.

The illegitimate ways to win a game all involve one form or another of refusing to play by or recognize the rules:  Paying off the refs; taking out another team’s star player with a bit of unnecessary roughness; wiretapping the other team’s communications lines so you can hear their play calls; using performance enhancing drugs; or just plain refusing to abide by the rules. The people who engage in these behaviors have decided that winning is the only thing that matters.  But they are wrong.  You can make a living playing professional sports, or get a scholarship to play collegiate sports, because people will pay to watch.  But if the spectators don’t believe what they are watching is real, they’ll eventually stop watching.  And soon the teams playing the game will realize there was something more important than winning after all, namely, not becoming the WWF.  That’s why principled athletes and athletic organizations play according to the rules of the game, understanding that there’s something more important at stake than just winning.  But it’s easy to lose sight of that and become Lance Armstrong.

It’s like that in politics too.  We Americans have strong feelings about our disagreements.  Our Founders provided us with a set of rules which would allow us a system for resolving our political differences peacefully.  That system is important because it keeps us from going to war with each other every couple of years.  People at war end up dead, a condition in which one's politics cease to matter very much.  And even when they don’t end up dead, they end up hungry, unable to peacefully and securely harvest their crops, educate their children, coach soccer, or enjoy a night out at the movies.  Principled people understand that our unified need to maintain civic peace and avoid civil strife are more important than almost any political question which might otherwise occupy our minds.  Therefore, they play politics in accordance with the rules, realizing that they will sometimes lose, their personal policy preferences will sometimes not be implemented, and they will have to live with it, even if they believe, deep within their hearts, that this means the world will become a worse place, or even if the loss affects them personally.  Unprincipled political players have come to believe so much in the infinite wisdom of their own personal policy preferences, that they are willing to cheat in order to see those preferences win the day, no matter what, the ends justifying the means. Principled people know better. They are willing to accept political outcomes with which they deeply disagree (at least until the next election) as preferable than playing outside of the rules: because they understand that if one side starts cheating, the other side will start cheating too, and soon, instead of an orderly process for resolving our legal and political differences, we’ll get a civil war, anarchy, and what civil war and anarchy almost always lead to: tyranny.  Principled people play out political and legal disputes in accordance with the rules, so their country doesn’t become Somalia, just like principled athletic organizations do what it takes to keep their league from becoming the WWF.

Here's a test to determine which camp you, or someone you know, may fall into. How do you feel about 
some recent, or some famous, U.S. Supreme Court decisions?  A non-principled partisan's opinions will always be results based.  If you favor abortion, or gay marriage, or Obamacare, or law X, you will support any judicial decision which upholds or creates (or pretends to find in the Constitution) a right to these things. If you disfavor these things, you will disfavor the rulings which uphold these things, every single time and without exception.  By contrast, if you are a principled person you will, at least once in a while, be able to say something like this: “Personally, I think that law is stupid, but I don’t see how it’s unconstitutional. Elections have consequences.  The congress did something stupid, but the Court has no power to fix it.”  Or: “Personally, I believe we should/should not change the definition of marriage. But I don’t see anything in the Constitution as currently written that requires that.  It’s a political question for the electorate.”  None of us are perfectly capable of intellectual honesty on all political questions.  So this is not a test that will be passed often.  But if you, or someone you know, have never made any such statement, because you believe that each and every one of your personal political opinions are a matter of “Constitutional rights” or "fundamental human rights" and not merely a matter of your own personal policy preferences and political opinions, allow me to suggest that it is such thinking that is part of the problem. Why?  Because it is people who believe such things who end up arguing that the ends justify the means, and that we should resolve all of our differences via assertions of power, unhinged from principle, to get our own way, in a might-makes-right world.  And where there are lots of such people in a nation, they endanger ordered liberty and self-government.

As Dallin H. Oaks has stated: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates."  Likewise, Justice Scalia has called for the issuance of an "SBC" stamp to new judges, which would stand for "Stupid But Constitutional."

In much of the world, no system exists for the peaceful resolution of political and legal differences. People in Somalia don’t get to debate the relative efficacy and fairness of a flat versus a progressive tax structure, affirmative action, same-sex marriage, appropriate grazing fees on land owned by the central government. Instead, people in Somalia have to figure out how to survive and eke out a living in a country where there’s no economic infrastructure or political stability, and whether to join up with or hide from the local warlord and his private army.  If you study the history of places like Somalia, you will find that one of two things is true: they have either failed to ever establish a coherent system for resolving political questions which the citizens generally agreed upon, or, they once had such a system in place, but they have lost it, perhaps due to foreign conquest, or, more often, due to internal strife.  Internal strife is what happens when some political partisans decide to become political Lance Armstrongs, seeking to win at all costs, believing that the ends justify the means, and all that really matters is the acquisition and exercise of raw political power for oneself and one’s tribe, through extrapolitical means if necessary, and the rules be damned.

CLIVEN BUNDY, SONIA SOTOMAYOR, AND THE CLAIM THAT WHAT A PERSON BELIEVES POLITICALLY IS A POLITICAL RIGHT

A couple of political Lance Armstrongs have been in the news of late: Cliven Bundy, and Sonia Sotomayor. Their behavior, if it came to be widely emulated or admired, would do to America what Lance Armstrong did to the Tour de France, taking a widely respected sport and turning it into the WWF, or taking a widely respected country and turning it into Somalia.  At first glance, Cliven and Sonia may not seem to have much in common. They are on opposite sides of both the horizontal political spectrum and the vertical political power structure in America. One is a right-wing white male cattle rancher who holds no political office but has (unfortunately) become (to some) a Conservative folk hero, whose cause was initially championed by one of the more prominent talking heads on Fox News. The other is a Latin-American female who sits as a Justice on the highest Court in the land, enjoying an appointment to that Court made by the most liberal President our nation has ever had.

What could these two possibly have in common?  Quite a lot as it turns out.  Yes. They've both made ill-considered statements which their critics construed as racist, Mr. Bundy having pondered whether “the Negro” was better off under the horrors of slavery than under welfare subsidies, and Ms. Sotomayor having suggested that her ethnicity and gender will make her a better jurist than those who do not share those characteristics with her.  But that's ultimately a cheap-shot comparison (based on the "gotcha" political correctness faux outrage politics that currently so cheapens our national discourse), which doesn't really get us to the issue at hand.  More relevant, they both have a fascinating talent for the subjective use of language, misconstruing words to mean, not what those words have traditionally and objectively been understood to mean, but to mean whatever the speaker wants them to mean. Hence, Mr. Bundy, in discussing the merits of his cause, recasts traditional legal concepts in startling new ways, including concepts such as “mine” (what I believe should be mine) "ownership” (a squatter’s trespassing and holdover possession), and “rights” (what I want).  For her part, Sotomayor can use her linguistic legerdemain to spin, in 50 pages of convoluted prose, an Alice-in-Wonderland fable rewriting MLK’s dream of an America where our children are judged by the content of their character and not the color of their skin, into a nightmare where we are all of us, now and forever, to be judged by nothing else but the color of our skins in perpetual perpetuity.

It is the second of these two similarities that is closest to the relevant point, but that point goes deeper still. 
The deepest similarity between Sonia and Cliven is that they are both perfect examples of unprincipled political Lance Armstrongs.  They both want to win more than they want to win in a legitimate way.  In pursuit of their own favored causes, neither is capable of an intellectually honest response to any counterarguments.  They both believe that the ends justify the means, might makes right, and that their own personal policy preferences are not just correct, as a matter of their own personal opinion, but create legal rights, just because they say so. The level of support they both enjoy should be deeply unsettling to anyone who believes in Constitutional government, because it suggests the prevalence of a deeply and widely held belief in America that the Constitution can be treated as an etch-a-sketch, and any parts of it that we don’t like can be magically wished away.  

I happen to be sympathetic to Cliven Bundy’s plight.  I believe that he, and other ranchers, have seen their ability to acquire permits for grazing on Federal land unfairly restricted by policies which I think are stupid and onerous.  But lots of people have livelihoods that are dependent to some extent on what the Federal Government is doing (vendors to U.S. Military bases facing closure, businesses renting property from the government or near National Parks), and when the risks of that arrangement don’t work out, they don’t get to go to war over these unfortunate outcomes.  It is a wholly unremarkable proposition that your landowner can, upon your lease's expiration, offer you a new lease on less favorable terms, or no lease at all.  A tenant who refuses to sign a new lease on terms which are not good enough for that tenant cannot reasonably suppose that he may thereafter, and without consequence, pretend that nothing has happened, refuse to sign that new lease, but stay in possession anyway, cease paying rent, claim to have "fired" his landlord, cease recognizing his landlord's existence, ignore court orders for his removal, vow in sworn testimony to do whatever it takes to physically obstruct his removal, and then feign outrage and surprise if, eventually, armed men come to stop his trespass. This is true even if your landlord happens to be the Federal Government which so many so deeply despise.  The ability to graze your cattle on public land is, ultimately, a privilege, and not a right, similar to a concession the county might alot to a favored few to open retail stores in the limited space available for such in a county airport.  There is no "right" to a renewal of such a concession, especially if you choose not to sign the terms of a new lease that is offered.

CLIVEN BUNDY'S ETCH A SKETCH VERSION OF THE CONSTITUTION

Cliven Bundy has been photographed with a copy of the Constitution in his shirt pocket.  His followers erected a large banner quoting the opening lines of the Constitution: “We the people” and many of them wear U.S. flags on their t-shirts.  These are strange props for the supporters of a man who has repeatedly violated orders of U.S. District Courts established by Article III of the Constitution, stood down executive branch agents acting under authority of Article II of the Constitution, and declined to believe that any laws passed by the Congress under Article I of the Constitution with which he disagrees are applicable to him.  This is a man who says he does not recognize the U.S. Government as even existing, and has acted on that belief now for 20 years.  If you don’t believe in Article I, or Article II, or Article III of the U.S. Constitution, or even in the existence of the U.S. Government created by that Constitution, what part of the Constitution do you actually believe in?  Just “We the people” and then skip to the First and Second Amendments?   Cliven Bundy wants one thing: to win. And if he can’t win under the rules, then he’ll win by ignoring the rules and by armed resistance instead.  He and his supporters are dangerous because they do not understand the price that will be paid by such a victory.  What happens when someone else starts grazing their cattle on Cliven Bundy’s converted allotments and he wants to kick them off?  What happens if two of Cliven’s militia men get into a brawl with each other?  Having refuted the authority of the Courts and the recognized agents of the law to resolve disputes of this nature, and having flouted the rule of law, where will Cliven and his friends turn?  To the rule of Cliven?  Cliven Bundy's arguments are based in the fringe and extremist views of the "sovereign citizens" movement, the ideology of which has been repudiated by one of the highest-ranking leaders in Mr. Bundy's church, and should not be countenanced by anyone who wants America to avoid becoming Somalia.

http://www.forbes.com/fdc/welcome_mjx.shtml

http://www.ldsinfobase.net/liberty/DHO_citizenship.html

(Let me digress to field briefly a commonly heard refrain: But, the founders broke the law too!  And where would we be without them?  And what about MLK and Rosa Parks?!?  Here's the deal: the founders broke the law because they discovered they had no political rights to change the law.  They realized they were not Englishmen, but Americans living under subjugation to a foreign power.  Taxation without representation. The lack of representation was what gave them the moral right to object with arms to the taxation, since they had no ability to object in the voting booth.  Cliven Bundy may not like Nevada's Senators, but he has as much of a right to vote for them as anyone.  As soon as our founders established representative self-government, they were quick to suppress, militarily, those who believed they could foment secession and rebellion against that government through extra-political means, away from the voting booth, no matter how sympathetic the rebels' grievances may have been.  (See, Washington and Hamilton's response to Shay's Rebellion and the Whiskey Rebellion.)  And a good thing too. Washington's support for the military suppression of Shay's Rebellion, and his personal involvement, as commander in chief, on the field leading the troops which put down the Whiskey Rebellion, is what kept this Country's revolution from turning into what the French Revolution turned into: "a pile of headless corpses with a dictator on top" (Margaret Thatcher).  Cliven Bundy is no Washington.  Indeed, Washington would have known exactly what to do with Cliven Bundy and his little band of so-called militia, and he would have led the charge.  As for MLK and Rosa Parks, the laws they opposed were immoral by any objective standard, including on the basis of Thomistic natural law theory relied upon by MLK, and they were willing to call attention to that fact by paying the price for their civil disobedience, and being arrested to draw attention to unjust laws, in peaceful and expressly nonviolent resistance. Cliven Bundy's supporters point their guns at federal agents and use fringe and historically inaccurate non-Constitutional and non-Thomistic "sovereignty" ideology to support their cause.  MLK and Rosa Parks would not be amused by the comparison.)

One of my first cases as a lawyer involved representing the owner of a bulldozer which had been damaged while in the possession of the lessee.  The damage happened like this: there were two rock and sand and gravel mining companies occupying adjacent properties.  One of the two had in its possession a piece of mining equipment leased to it by a third party. When they stopped paying the lease payments, the owner transferred the lease to their neighbor, but didn’t bother to transfer the actual piece of equipment.  He left the recovery and repossession to the new lessee, which went to its neighbor’s property to seize the object and, pretty soon, people were climbing into bulldozers and using them as armored tanks, going to battle with each other, ramming into one another and tipping over pieces of heavy equipment (my client’s bulldozer was one of the many damaged in the melee).  The battle finally ended when someone got shot.  That’s what happens when people forget we have a court system to resolve these issues peacefully.

SONIA SOTOMAYOR'S ETCH A SKETCH VERSION OF THE CONSTITUTION

But in order for the citizenry to trust the courts, the courts need to remember the limits of their own authority and power.  Their decisions have to be based on logic and reason and an at least arguably proper application of the facts to the law.  If our judges act instead like referees who have been paid off before the game, repeatedly making decisions which are obviously designed to reach a pre-desired political end, even if doing so requires leaps of logic that a 5th grader could see through, they will find themselves so disrespected as an arbiter of our legal disputes that no one will want to utilize them for that function.  They will find that we have all become Cliven Bundy, refusing to recognize the authority of tribunals that are interested only in power, not in principle.  Judges who are guilty of this misuse of their power deserve to have us question their authority.  "The judge who forgot the admonition in Proverbs, 'Do not favor the rich, neither favor the poor, but do Justice,' who set aside the laws, or who 'interpreted' them in a way he considered 'more fair' was, for all his good intentions, robbing the populace of an actual possession (the predictability of the legal codes). He was graciously giving away something which was not his."  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

That’s what makes Sonia Sotomayor’s dissenting opinion in the recent Schuette case so discouraging, and the support she has garnered in certain pockets of the left so similar to the support Cliven Bundy has received among certain people on the right.

The “equal protection” clause of the U.S. Constitution means what it says: the government can’t discriminate against you (or prefer you) because of the color of your skin, or due to some other immutable characteristic, or on the basis of characteristics (your religion) that are protected elsewhere in the Constitution. Nevertheless, public institutions have done just that, passing laws giving preferential treatment to minority owned businesses bidding for public works contracts, and allowing discriminatory preferences to minority applicants for public universities.  These laws have been upheld by the U.S. Supreme Court under various theories limiting the application of or creating exceptions to the equal protection clause.  I happen to disagree with affirmative action,  (i) on principle, such that I disagree with the cases which have upheld it as Constitutional, (ii) based on its lack of efficacy (read Chapter 3 of Malcolm Gladwell’s book, David and Goliath, if you want to understand why we would have far more minority doctors and lawyers and scientists in America today if it weren’t for affirmative action admissions policies at our universities) and (iii) due to the fraud it encourages (let me know how many “MBE’s” and “WBE’s” you've worked closely with that you haven't eventually learned to be a front diverting money to some white guy).  Nevertheless, I understand that both the constitutionality and the efficacy of affirmative action is an issue on which reasonable minds can disagree, so long as the argument is being played out under the correct rules.

The subject of this blog post isn’t whether I agree or disagree with the underlying political policy preferences of Mr. Bundy and Ms. Sotomayor, but, rather, how I feel about both of their equally disreputable methods. While I disagree with a lot of past U.S. Supreme Court jurisprudence on the affirmative action question, I have to credit most of those decisions as having at least been honest about the question before them: “May a government violate the equal protection clause of the U.S. Constitution in order to remedy the effects of past discrimination, or in order to advance some other governmental interest –diversity or some such excuse– which warrants granting the government an exception to the equal protection clause, and if so, under what circumstances?” Whatever you think about how the Court has ruled on cases raising that issue, those rulings can't be seen as activist in nature.  They have generally upheld what the government had previously decided it wanted to do. They did not judicially impose a requirement of racial discrimination, but upheld such a policy that some governmental entity had adopted.

The question in the Schuette case was different, and much more simple.  Faced with a voter referendum in which the citizens of the State of Michigan decided that the time had come to end race-based admissions standards to public universities, the question became: “May the government of a State, or its people, uphold the equal protection clause and decide not to seek an exception to the Constitutional rule?”  Well, duh.  Any idiot can answer that question.  Of course the government doesn't HAVE TO engage in racial preferences and discrimination.  But Sonia Sotomayor is not just any idiot.  And her response to this question has been to say “No.”  You, Mr. Governmental entity or public institution, may NOT abide by the Constitution.  You are REQUIRED to violate it.  You are REQUIRED to read it the way I read it, as saying just the opposite of what it actually says.  Affirmative action policies (I am not making this up, her dissent indicated that she really wanted the court to rule this way) are not just acceptable despite the plain language of the equal protection clause, they are mandated by that language!   (No, really, I’m not kidding, she thinks we would buy this, that we’re just that stupid.  She really, really, and for truly does.) Sonia Sotomayor believes so much in affirmative action that she will not just allow you to have such policies, she will require you to do so.  It's like some one announcing that marijuana use won't just be legal in your State, it will be mandatory. What is more, if your State has the unmitigated gall and temerity to disagree with her, she believes she has the right to impose her personal policy preference upon you.  The Supreme Court has done this before of course, and gotten away with it far too often by declaring Constitutional rights to exist in the Constitution’s so-called "penumbras" and "emanations" which appear no where in its text.  But Sonia Sotomayor takes this judicial arrogance further than has ever heretofore been seen.  She is not simply finding rights in the Constitution which don’t actually appear therein, she is taking rights which are there, in black and white, in the text, namely, the right to be treated equally under the law, and transforming them into their opposites, in order to protect her own chosen policies and preferred politics, and advance the cause of her own fellow liberal tribesmen, all in violation of the principles of democracy, and the principles of common sense, and the principle of reading plain English to mean what it says, and what it was intended to say.  If she was a cow grazing on the land Cliven Bundy claims to own, she could not be having less coherent thoughts.

Nevertheless, all of the usual government-by-judicial-oligarchy suspects lined up to praise the "courage" of Sotomayor's dissent, each of them playing the usual power politics and each of them, with willful blindness, intentionally ignoring the true nature of her argument.  The constitutionality of affirmative action is not what was at issue in Schuette, the constitutionality of democracy is what was at issue in Schuette.  May the people of Michigan democratically amend their Constitution to require what the U.S. Constitution already requires: equal treatment by the government of the governed regardless of race? Or may the U.S. Supreme Court impose upon them a requirement to do otherwise?  Anyone who calls Sotomayor's dissent courageous is an unprincipled political Lance Armstrong, a person who believes it is more important for his or her personal policy preferences to "win" than it is for our system of self-government to "win" by being recognized.

The role of a judge in our society is similar to the role of a referee during a football game.  They are not to be partisan players, but to ensure our legal and political disputes are fought in accordance with the pre-established rules.  For Supreme Court Justices applying the U.S. Constitution, that means they are to apply the Constitution, not amend it from the bench.  A system for democratic amendment already exists, thank you very much.  Just as we should have nothing but scorn and contempt for a referee who we learn has money on the game and has been making biased play calls, Sonia Sotomayor likewise deserves our scorn and contempt for having assumed that her role is not to adjudicate, but to play for one of the teams.  I may be wrong about the merits of affirmative action, and Sonia Sotomayor may be right.  But in that case, she should have gotten out her SBC Stamp and called the voter referendum to which she objected "stupid but constitutional."  Instead, she lends credence to the Cliven Bundys of the world, and others like them, who can't distinguish between a political preference and a constitutional right.  If Sonia Sotomayor, sitting on the bench, can't draw this distinction, why should an Nevada rancher with no legal education, training or experience be able to do so?

The biggest issue any constitutionally governed society faces is how to ensure that the constitution is complied with.  Judicial review is the system which we have developed in America to deal with this problem. But that system comes with a huge risk: the temptation of the judiciary to falsely equate and conflate their own personal policy preferences and their own political views with what the Constitution actually says, and thereby to unmoor us from Constitutional governance and tether us instead to governance by unrestrained judicial oligarchy. Those members of the judiciary who give in to this temptation have corrupted our system and violated their oaths of office.   Again, they have "robb[ed] the populace of an actual possession (the predictability of the [Constitution]" thereby "giving away something" which was not theirs to give.  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

THE VICIOUS CYCLE

Cliven Bundy and Sonia Sotomayor are both dangerous for the same reason: because they are both anti-Constitution.  Cliven feels he can ignore the existence of the government established by the Constitution, as well as its Courts, and executive branch officers and legislative branch legislation.  Sonia feels she can ignore the plain text of that Constitution and personally rewrite it to say the opposite of what it clearly says.  Both are unprincipled win-at-all costs partisans who believe that political questions can only have one proper answer: the answer that allows them to win, and recognizes their own power to get their own way no matter what, and if they don’t, to throw a spoiled child's temper tantrum. Sotomayor’s dissent in the Schuette case is the mirror image of Cliven Bundy’s stand in choosing not to recognize the existence of the government: both positions ignore the plain text and meaning of the Constitution.  Sonia's dissent does some other things that resemble Cliven too.  Just as Cliven refuses to believe that the State of Nevada is not the ultimate arbiter of his rights on Federal land, Sonia ignores the principles of Federalism where they do actually apply, pursuant to which the U.S. Government is a government of limited and delegated and enumerated powers and the States are political entities of general jurisdiction.  She turns a State question of a State’s admissions policies at State Universities into a question of Federal concern, which it is not.  And her dissent answers that question by borrowing Cliven Bundy’s Etch-A-Sketch version of the Constitution, so Sotomayor, like Bundy, can be provided with a Constitution which she can pretend says what she wants it to say, instead of what it actually does say.

One of the best defenses of the rule of law ever written may be found in this exchange from Robert Bolt's play about Sir Thomas More:

"Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

Robert Bolt, A Man for all Seasons

Substitute "the Federal Government" or "Republicans who want to democratically end affirmative action" or your own personal bogeyman in place of "the Devil" and hopefully you'll get the point.

It's a point which eludes both Sonia and Cliven.  And it is not the only thing they don't understand.  Their extrapolitical power plays create a vicious cycle, each feeding on the other and strengthening those who they most oppose.  Sonia's insistence that the Constitution can be read as mandating that which it expressly forbids is so utterly preposterous that, the more frequently it is accepted by the majority of her fellow Justices, the more it deprives the Court of any moral right or claim to be treated with legitimacy.  It would make the vast majority of Americans want to become Cliven Bundy, each of us refusing to recognize the authority of a tribunal which would require us to live under the rules handed down by such absurd and ridiculous jurists.  I won't discuss here the pros and cons of judicial review, but given the judicial veto power over democracy inherent in that doctrine, and its obvious potential threat to self-government, that kind of public sentiment against an overly arrogant Supreme Court is the kind of thing that can lead to war, if the people feel their right to live in a democracy has been unreasonably withheld from them. Has led to war in fact. Abraham Lincoln became a little bit of a Cliven Bundy in his disregard for the Dred Scott decision, which strengthened Northern resolve to carry out the Civil War.  (Sometimes the backlash is less violent. Roe v. Wade arguably led to the election of Ronald Reagan, and won the Cold War. But I doubt Sonia would see those events positively, in the way I do, and so she might want to take them as a cautionary tale.)   Similarly, Sotomayor's inability to differentiate between her own personal political preferences and the mandates of the Constitution further fractures a system which requires its citizens to make distinctions between rights and privileges, politically desirable policies and human or constitutional rights. If someone in her position can't do it, how should the rest of us be able to do so?

Cliven Bundy's actions, similarly, strengthen the very Federal Government which he opposes. In promising to do whatever it takes to prevent the federal government from carrying out federal court orders on land owned by the federal government, Cliven only encouraged the heavily armed response which his supporters felt was so overwrought.  But the more his non-supporters learned about the facts of the case, the more they supported the militarized federal response. Go read the comment sections to some of the liberal anti-Bundy stories on the internet. There are people calling for the U.S. Government to use drone strikes against Bundy. Whose to blame for those kinds of sentiments?  In large part, Bundy himself is.

If this is the way politics are going to be played in the future (and the support which Cliven and Sonia have garnered from many who ought to know better suggests this may be so), on the basis of unprincipled assertions of raw political power, which ignore the rule of law and discard the text and plain meaning of the Constitution, then America’s experiment in ordered liberty and self-government will soon be doomed. Fortunately, not all conservatives sided with Cliven, and fortunately a majority of the Court rejected Sonia’s “reasoning” including even one of the liberal justices.  But the support both of these unprincipled political  might-makes-right power players received at their respective ends of the political spectrum does not bode well for America's future.

Welcome to Somalia?