Tag: John Marshall

McCabe’s ouster unfolded against a chaotic political backdrop which includes Trump’s repeated calls for investigations of his political opponents, demands of loyalty from senior law enforcement officials, and declarations that the job of those officials is to protect him from investigation. Writing in the wake of the impeachment of President Bill Clinton, and the turmoil of the 2000 election, the political scientist Keith Whittington noted the speed with which commentators had rushed to declare the country on the brink of a constitutional crisis—even though, as he pointed out, “the republic appears to have survived these events relatively unscathed.” Whittington instead proposed thinking about constitutional crises as “circumstances in which the constitutional order itself is failing.” In his view, such a crisis could take two forms. Whittington, Levinson and Balkin all agree that the notion of a constitutional crisis implies some acute episode—a clear tipping point that tests the legal and constitutional order. What exactly is the crisis here? Another problem with thinking about America’s current woes as a constitutional crisis involves the question of what comes next. Still another problem with the term is that the duration of the crisis is not clear. There’s a better term for what is taking place in America at this moment: “constitutional rot.” Constitutional rot is what happens, the constitutional scholar John Finn argues, when faith in the key commitments of the Constitution gradually erode, even when the legal structures remain in place. It’s also what happens when all this takes place and the public either doesn’t realize—or doesn’t care. Balkin used the same phrase immediately after the firing of James Comey to describe what he saw as “a degradation of constitutional norms that may operate over long periods of time.” Comey’s firing was startling, he argued, but not a constitutional crisis in and of itself. The question is whether we can collectively bring that infection under control before we face an acute crisis.

When the Founders first wrote and passed what we know call the Second Amendment, they viewed the Constitution in an entirely different way than most people do today. Most laws were passed at the state and local levels, and state constitutions determined the limits of those laws, including gun laws. Following the passage of the 14th Amendment—which reads, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—some courts began determining that at least some of the federal Bill of Rights applies to the states as well. For most issues, Americans are willing to accept such a model. Either left-wing states and their citizens will have to continue living in a nation in which guns are constitutionally protected, or they’ll have to change the Constitution to ban most or all types of guns from being owned. Unfortunately for gun advocates, left-wingers don’t need an amendment to gut the Constitution of its firearms protections. After all, liberals already have four justices on the bench who would likely approve of a law creating radical restrictions on gun rights, and the Court’s swing vote, Anthony Kennedy, is 81 years old. The United States needs a new amendment governing gun rights, and the only amendment that would likely have any chance of being approved would be one that returns the Second Amendment to the position the Founders envisioned, when it only applied to federal law. This, coupled with clarifying language that makes it more difficult for federal authorities to restrict gun rights, would permit states to issue stricter gun bans, assuming their state constitutions allow it. But it would also ensure citizens in states where guns are valued—which, by the way, is most states—are guaranteed from ever having their gun rights taken from them by a Supreme Court controlled by left-wing justices.