Party like it’s 1899: Dodd for President, 2016

A week ago, with Governor Jindall’s admission of his candidacy, I promised that if one more Republican ran for President, I, too, would seek the GOP nomination. I’m a man of my word. Given Governor Christie’s entry into the race three days ago, I hereby announce my candidacy: I will walk for the Presidency. (My heart, like Governor Christie’s, aches at the mere thought of running.) I am taking this step partly because I love my country, but mostly because everyone else is doing it and I don’t want to be the last Republican in America who isn’t. Besides, if there’s one principle on which we can all agree in our divided nation, it’s this: You all want to be sarcastically told what you’re doing wrong by a guy with a plummy British accent.

Now, admittedly, I will never be President; as a naturalized American, I can’t take office: “No person except a natural born citizen … shall be eligible to the office of President….” So what’s the point of seeking the nomination? For one thing, because far too many Americans don’t know the meaning of the word “quixotic,” and it’s about time that we changed that. But seriously, folks, I have two answers to that. First: If you’re fed up with the capacity of a functioning government to hold a knife to the jugular of American freedom, perhaps a constitutional crisis is just what the doctor ordered? Second, and more to the point, my ability to seek the nomination paired with my inability to take office makes my choice of vice-president—well, let’s just say, in the immortal words of former-Governor Blagojevich, “a fucking valuable thing.” Cash donations to my campaign will not hurt your chances. Wink wink. 

Enough about me; let’s talk about the issues. President Roosevelt promised a new deal; President Hoover promised a chicken in every pot; the first President Clinton promised a blue dress in every winsome girl’s wardrobe; what can you expect from President Dodd?

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For today, I won’t want to bore you with my plans to veto any piece of legislation that lacks a sunset clause, period; and do you really want to sit through a long-winded speech about ending corporate welfare, a flat-rate income tax (flat percentage, mind you, not flat dollar), repealing the Seventeenth Amendment, retroceding most of DC to Maryland, getting the federal government out of its wars on drugs, law-abiding gun-owners, and education, imposing the death penalty on people who don’t use the oxford comma, a second season for “Caprica,” and so on? You can xerox Newt Gingrich’s manifesto and stick my name on it for yourself. 

But I do want to talk to you about the issue that, in my view, matters the most. Listen: We’ve had some fun in the last few paragraphs, so I think I’ve earned your indulgence to be serious—not too serious, I promise—for a few minutes. Like all naturalized citizens, and like those of you who have served our nation in the armed forces or other capacities, I took an oath to support and defend the Constitution. That oath now demands a few words, because I fear that the Constitution and indeed the very rule of law that it presupposes is under siege.

The distinguishing mark of the anglosphere is its commitment to what we have called “the rule of law.” Lon Fuller thought that the rule of law meant that “the acts of a legal authority toward the citizen must be legitimated by being brought within the terms of a previous declaration of general rules,” and that’s good enough for me. But it’s a little abstract. Concretely, what the rule of law entails in America is this: There is no law binding upon Americans that was not ratified by Americans, and the law that was ratified by Americans rules America. We ratified a Constitution, and we elect a Congress and a President; Congress makes statutes which are executed by and govern the president, and both (and the states besides) are governed by the authorities and limits of the Constitution. For example: The people decided that Congress would have the power to impose federal taxes; until we change section 8, Congress, and only Congress, has that power. Likewise, when Congress says that the tax rate on widgets is x%, it’s x% until Congress says otherwise. Or, to take another example, we decided that Congress, even when otherwise acting within its authority, would not have the power to abridge the freedom of speech; until we change the First Amendment, Congress can’t do that—and neither, by law and by custom, may the states or the federal government more broadly.  

Sometimes, however, they try. And when they do, Americans are apt to sue. For example, when the District of Columbia infringed Richard Heller’s right to keep and bear a handgun—notwithstanding that we had decided that they can’t do that, and have never authorized a change in the second amendment—he sued. Unfortunately, few cases are as straightforward as Heller. Some of these restrictions on what government can do—we call them “rights”—are not necessarily apparent on the face of the text, and this requires that courts interpret the Constitution. But the rule of law demands that constitutional interpretation, of its very nature, be backward-looking: It asks not “should Congress be able to do x,” but “have the people, through the Constitution, prevented Congress from doing x?” If the answer is yes, the courts are obliged to say “you can’t do that,” even if a majority today really wants to (or vice-versa). The answer is found in the bone of text and the flesh of tradition, an approach exemplified this year in cases such as Johnson v. United States and the Kerry v. Din plurality.

Any criticism of judges must (but rarely does) recognize that the dictionary is not a fortress, and that words can be ambiguous. My example is United States v. Santos, in which the Supreme Court tackled a statute that referred to the “proceeds” of an enterprise—but did that mean net proceeds or gross? There was no answer to be had in the word itself. Nevertheless, suppose that the statute had specified “net proceeds,” and my administration decided to start enforcing criminal penalties against those who used not only net proceeds, but gross proceeds? Would we think that authorized by the statute, and thus consistent with the rule of law?

Or imagine that Congress authorizes a national sales tax on wine of five percent. If my administration chooses to apply that tax to beer, or to tax wine at six percent, is that consistent with the rule of law? No. But listen: Put down your glass of wine (or beer) and ask yourself: Why not? Because the law is in words and words have meaning. Beer isn’t wine; that the statute authorizes and obliges me to tax a given liquid at 5% doesn’t authorize me to tax any liquid at 5%, or that liquid at a different rate. The actions that the statute authorize are defined and bounded by the meaning of its the words. Could Congress define “beer” as wine for purpose of the statute? Sure. Could beer count as wine if there were a longstanding common-law equation of wine with beer? Sure. But absent such things—and without denying that sherry presents a more difficult case—it is an assault on the rule of law to argue that the word “wine” means something beyond the range of meanings foreseeable to the drafters.

The same goes for the Constitution; its guarantees are empty if its words are protean. (The’s a ten-dollar word for “can mean anything.”) Think about the right to a jury trial, for example. Precisely because the dictionary is not a fortress, that right is meaningless unless the word “jury” has definite content: If my administration can define “jury” as anything it likes, including a bench of military judges whom I hand-pick, in effect, you have no right to a jury trial. Similarly, our attempt to safeguard that right by enacting Constitutional text protecting it would be thwarted if that definite content is anything other than the meaning that the word was understood to encompass at the time that we enacted it: If society’s evolving consensus decides that it’s more efficient to have a jury with only three people, and if that can pass muster because courts think that rights must be kept up-to-date with current fads, in effect, you have no right to a jury trial. The hard truth is this: The rule of law is an empty promise if it does not entail what we today call “originalism.”

All to often, however, the courts have placed the rule of law in jeopardy rather than upholding it, whether by inventing restrictions on Congress that we never approved, by failing to enforce those which we did, or by discovering powers of Congress that we never approved, or by failing to allow it those which we did. Consider Korematsu. It does not matter a whit if an opinion poll might have found broad public support for the Japanese-American internment; the law was clear, internment violated it, and the court was wrong to allow it, even if the public might have approved. Or consider Brown v. Board of Education. Imagine that the justices, fearing the disapproval of a public that perhaps felt differently, had come out the other way; the law was clear, segregation violated it, and the court was right to strike it down, even if the public might have disapproved. Judicial failure to enforce the law because the law is inconvenient to the government or unpopular with the public, or vice versa, threatens the rule of law.

In just the same way, judicial corruption or invention of law, perhaps because the law as it exists is inconvenient to the government or unpopular with the public, also threatens the rule of law. Consider Roe v. Wade. Should there be a right to “choice”? A right to “life”? In dubiis, libertas? America was and remains divided on abortion, and so it is little surprise that we have not been able to agree on a constitutional answer that settles the question. Recalling that the rule of law demands that constitutional review be a past-tense exercise in which judges ask whether Americans have enacted a particular right rather than a present-tense exercise in which judges ask whether there should be such a right, the answer in Roe should have been “no law on that one. Figure it out for yourselves.” We should think of cases such as Furman v. Georgia and its progeny and Obergefell v. Hodges and its antecedents as further examples in the same category. America was and remains divided on the death penalty; she is less and less divided on gay marriage, nothwithstanding that it was, for most of us, an unthought thought just twelve years ago. But the idea that a previous generation of Americans have settled this question with an answer that must, perforce, have lurked unnoticed in the text yon these many years is preposterous and at odds with the rule of law. The answer in such cases must be: “No law on that one.” (This is particularly obnoxious in cases such as Obergefell or Kennedy v. Louisiana where the court pretends that the Constitution demands a result on which legislatures were rapidly converging, which, even for those who support the policies at issue, leaves timing as the sole entry on the “benefit” side of the ledger, with no offsetting diminution of cost.)

When the courts crash through the limits of their proper lawsaying role and exercise what Justice White called “raw judicial power, … an improvident and extravagant exercise of the power of judicial review,” when they set aside the text and tradition to tell Congress, the President, or the states that they may do something that the Constitution does not allow or even forbids  (Morrison v. Olson, for example, Hamdi v. Rumsfeld, Central Virginia Community College v. Katz, or NFIB v. Sebelius) or may not do something that the Constitution allows  (United States v. Stevens, for example, Lee v. WeismanStenberg v. Carhart, or United States v. Virginia), the rule of law suffers. The rule of law is not a token to be bartered lightly for the temporary convenience of what one generation wants—let alone of an intellectual elite that thinks it knows what that generation wants.

With this in mind, my priority as President will be vigorously safeguarding, tending, and extending the rule of law by attentively, assiduously, and aggressively filling judicial vacancies with women and men who understand the proper role of the judiciary. (In the event of a Supreme Court vacancy: Diane Sykes, call your chambers.) I cannot promise you that I will nominate judges with whose rulings you will always agree. The dreaded phrase “judicial activism” all to often means nothing more than “I don’t like it.” But I do promise you that I will nominate to the bench only those whose proven track-record gives us confidence that they understand the proper role of the judiciary—judges who will assertively protect rights that we have protected in the Constitution and will not bind the people’s hands with made-up rights that that we have not (yet) protected in the Constitution; who will strike down popular legislation that the Constitution does not allow as fearlessly as they uphold unpopular legislation that it does. I will aggressively lobby Congress to abolish the out-of-control U.S. Court of Appeals for the Ninth Circuit, along with all its judgeships, and their replacement with new 12th and 13th circuits (along with, incidentally, a new Court of Immigration Appeals to alleviate the docket pressure on our courts, in which such cases composed, in 2014, nearly 90% of agency appeals).

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This weekend we celebrate the anniversary of our nation’s momentous decision to break from King George III’s British empire. Our forefathers did so not simply because they thought that George’s decisions were mistaken, but because they believed that Americans should make those mistakes; it wasn’t about whether the decision was right or wrong but who decides. Shall we rule ourselves, given that we may sometimes rule poorly? Or shall we be ruled by a king, given that he may sometimes rule wisely? Given fellow-colonists who stubbornly refused to convert to your opinion, would you have instead sided with the crown had King George promised you same-sex marriage? Or abolition of the death penalty? If so, you and I have different ideas of what we are celebrating this weekend.  

My first job as your President is your freedom—to protect America from foreign threats and to get the government out of your way so that you can follow whatever lawful pursuits you like. But my job is also to keep the promise  that we made ourselves at the time of the founding: That Americans will be ruled by the laws of Americans, not the guesses of weak judges or the preferences of masterful judges. If it is to remain our “proud boast” that we are a nation of laws, not of men, as it has been since the Massachusetts Constitution of 1780, we must have originalist, textualist judges who honor what the people have already decided and otherwise leave the people free to decide for ourselves.

Thankyou—and may the United States of America bless God,  as we hope that He will in turn bless us.