As I write this piece, millions of conservative Americans are searching their consciences, trying to decide whether they should vote for a man who openly refutes and mocks their core values, and thereby ensure that Hillary Clinton wins by three points rather than eight. They are making this decision against a backdrop of concern, intentionally stoked by well-meaning-but-deluded citizens, that America’s constitutional republic won’t survive a Clinton presidency.
These folks think and argue that America is one more bad president and one or two more Supreme Court justices from oblivion. They’re wrong. That’s not to say that America is too big to fail or that we couldn’t “fundamentally transform” into something unrecognizable. But such a transformation couldn’t be singlehandedly pulled off by the Supreme Court or the President. If it happened, it would be the result of collective societal action over a sustained period of time. Our ship is resilient. It would take more than one iceberg to sink.
For that, we can thank Alexander Hamilton and the rest of America’s Founding Fathers. They built a system remarkably resistant to even sustained incompetence and corruption, with checks and balances so comprehensive that when America commits enduring sin, it does so only through the consent and participation of the governed, manifested through multiple branches of government.
Let’s take the Supreme Court, for example. There is little doubt that it has slipped from the limited role envisioned by the Founders, asserting powers far greater than those granted to it by the Constitution. But if you closely examine its decisions, you’ll see the extent to which the court on its own can’t reshape American life.
Consider gun rights. One of the worst outcomes of a Clinton-appointed court would be a reversal of the Heller decision, the case recognizing that the Second Amendment protects an individual right to keep and bear arms. Yet the immediate real-world effect of such a reversal would be limited. Indeed, most new gun-control proposals would be entirely legal even under Heller. Its reversal wouldn’t repeal any single provision of any single state constitution, nor mandate any congressional action. It would be at worst the first step toward government persecution of gun owners, not the last — and other courts and each layer of government would subsequently have ample time and opportunity to push back.
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What about abortion rights? While Roe v. Wade is an abomination on the order of Dred Scott, pro-life Americans can’t kid themselves. Even if Roe were reversed tomorrow, abortion would still be legal in the United States. The true long-term impediment to reversing Roe hasn’t been the Supreme Court but rather the indifference and even support of the American people. If a solid majority of Americans were as committed to life as most pro-life activists are, Robert Bork wouldn’t have been Borked, our judicial nominations since Roe would have been entirely different, and the decision would have long been relegated to the dustbin of history. As difficult as this is to say, Roe remains in effect through the consent and support of the American people.
It is simply impossible that Hillary Clinton could destroy the republic in four or eight years.
Religious liberty, too, is far less legally fragile than those on the right imagine. The most critical religious-liberty decision of the entire Obama presidency wasn’t Hobby Lobby v. Burwell, a remarkably narrow case interpreting a federal statute. It was Hosanna-Tabor Evangelical Lutheran Church and School v. the EEOC, in which a unanimous Supreme Court beat back the Obama administration’s attempt to “fundamentally transform” relations between church and state, attempting to inject the state into the very process of hiring and firing ministers. Even Ruth Bader Ginsburg thought the government’s position was too radical to countenance in that case.
The Supreme Court has ruled unanimously against the Obama administration no less than 23 times, and has many times reaffirmed bedrock constitutional principles protecting religious liberty and prohibiting viewpoint discrimination by overwhelming majorities. Our core liberties are not as precarious as you think.
Again and again, our nation’s worst constitutional failures demonstrate the collective will not just of one branch of government, but often of all three, backstopped by an enthusiastic or indifferent American voting public. Congress writes vague laws into existence hoping to get credit for good intentions while deflecting criticisms for bad outcomes to the regulators who fill in the details. The court defers to regulatory interpretations in large part because that was the intent of Congress. The president then sets about exercising the expanded powers both branches have granted him, gleefully grabbing the buck he’s been passed.
It is simply impossible that Hillary Clinton could destroy the republic in four or eight years. She couldn’t do it through Supreme Court appointments, nor even through the awesome power of the contemporary presidency. She would need the consent of the Senate. She would need a Congress that refused to act in the face of judicial or executive overreach. She would need the American people to ratify her worst acts even when politicians far more talented and capable than Donald Trump challenged her on the national stage. She would need the court’s liberal majority to change its mind on issue after issue, exposing Americans to state abuses beyond anything yet seen in modern times.
And let’s not forget, even if every branch of government fails — if the elites of both parties somehow systematically and comprehensively reject the will of the people and subvert the intent of the Founders — the Constitution contains an insurance policy: The people have the ability, through a Convention of States, to amend the Constitution and restore the Founders’ vision without the consent of Congress or the President.
Ponder American exceptionalism for long, and you’ll be drawn to a remarkable paradox: We’re exceptional in large part because the Founders realized that we’re normal. Our nation is full of human beings who possess the same will to power and temptations to dominate as have existed in every society that ever existed. So Hamilton as his colleagues made the exceptional decision to limit and diffuse governmental authority, an act that to this day helps make — and keep — America great.
When, barring any shocking developments, Hillary Clinton is sworn in on January 20, 2017, she’ll take the oath of office with the knowledge that her actions will be judged by voters in less than two years. Absent a truly historic electoral rout, she won’t have a free hand to implement her agenda for even one day of the first half of her first term, and if the mid-terms go badly for her, her freedom will be further limited. That just isn’t the recipe for an extinction-level constitutional event.
#related#Do you doubt me? Well I can guarantee you this — not one single talk-radio host, activist, or interest group screaming about the End of All Things will close up shop after Clinton is inaugurated. The better ones will do what they do today: roll up their sleeves and get to work, enjoying the benefits of a Bill of Rights that always seems to give Americans a next chance to do the right thing. The unethical ones will also do what they do today: roll up their sleeves and get to work raising piles of money from Americans frightened that the next election really, truly will be the final test.
America isn’t invulnerable. It could destroy itself. But Hillary Clinton couldn’t destroy it if she wanted to. That doesn’t mean that elections aren’t important or that she couldn’t do serious damage, but politics is downstream from culture. And if we destroy or debase our culture for the sake of politics, we are sacrificing the greater values for the lesser outcomes. Hamilton’s system was built to survive far worse than Hillary Clinton, and it hasn’t failed yet.