In 1994, the Republicans, for the first time in 40 years, took control of both Houses of Congress. In 2000, after some controversy, the GOP secured the presidency. Now, they have lost both houses and look to be well on their way to losing the presidency in 2008. Parties lose when they don’t give their supporters what they want. And, while the Iraq quagmire would probably have brought the Republicans down anyway, they could have come a lot closer to retaining some of their seats if they had kept their base happy.
The funny part is that their supporters were very clear about what they wanted, and it would have been easy for the party to give it to them. They wanted an end to the culture created, over the last 50 years, by “activist judges.” Our culture has been formed by judge-made rules handed down by the Supreme Court and the state courts. No legislature would have done what they did. No legislature would have removed prayer from public schools and crèches from the town square at Christmas; found a constitutional right to sodomize; protected pornographers and flag burners; facilitated unlimited abortion; upheld affirmative action; interfered with school discipline; and created an infinite number of new rights for criminals. The result is a vulgar mess. The Republicans’ supporters—and lots of Democrats—hate it. Is there an easy way to end it?
Article III of the Constitution gives the people the choice: A simple law passed by Congress and signed by the President can remove—or, in the parlance, “strip”—any class of case from the Supreme Court’s jurisdiction. That means the Court cannot lawfully interfere with the issue anymore. The stripped issues go to the states to be decided by their legislatures or courts. If the people in Wisconsin want prayer back in the schools, it’s back. The same goes for “gay marriage,” abortion, pornography, and the rest of the culture-war issues. Over time, the people would recover their culture. The Republicans had the opportunity to deliver a prize beyond price. They just had to grasp it.
Instead, the Bush administration supported strippers to keep the courts out of Guantanamo Bay and Abu Ghraib but not to stop their cultural incursions. The Detainee Treatment Act of 2005 stripped the courts of the power to hear Guantanamo cases. The Supreme Court, however, in Hamdan v. Rumsfeld (2006) ruled the stripper did not apply to cases already pending. Since almost every Guantanamo detainee was part of a class action, the Bush administration passed the Military Commission Act stripper, this time saying we really mean it by specifying that it applied to pending cases. The Military Commission Act of 2006, signed on October 17, 2006, strips American courts of the power to hear any case brought by anyone designated by the President as an “enemy combatant.”
But the Bush administration would not support strippers to restore a civil culture. Even after the House of Representatives passed a “gay marriage” stripper (2004) and two Pledge of Allegiance strippers (2004 and 2006), the Bush administration would not support them. None of the House-passed strippers were introduced in the Senate.
Why didn’t the Republicans give their supporters what they wanted and end the judge-made culture? The Republicans refused because they are convinced that court bashing is a successful campaign issue. After all, it had won elections for them since 1968. They preferred the issue to the solution. They have lost their souls.
The Democrats, if they get the White House in 2008, will have the power to pass some strippers themselves. Will they? At first glance, that seems about as likely as Bin Laden converting to Catholicism. Democrats opposed the Military Commission and Detainee Treatment Act strippers and the House “gay marriage” and Pledge of Allegiance strippers, so one might expect them to continue opposing such actions. Indeed, on the House floor, they called strippers “unconstitutional,” “immoral,” “discriminatory,” and “dangerous nonsense.” They have argued for the last 50 years that the Supreme Court is the ultimate arbiter of what the Constitution means. Indeed, they have obtained better results from the Court than they ever could have hoped to get from an accountable body. They opposed strippers intended to end school busing in 1972. They opposed strippers to restore school prayer in 1979, 1982, and 1985, although polling data consistently reports that around 75 percent of Americans support prayer in public schools.
The Democrats, however, may surprise us. They might do some selective stripping—like rolling back some of the President’s civil-rights intrusions. To do so would be popular with their base and with some conservatives who believe that, thanks to such measures as the Bush administration’s USA PATRIOT Act, we are losing our liberties. Historically, Democrats have not hesitated to use strippers: FDR, early in his presidency, signed the Norris-Laguardia Act (1934), which stripped federal courts of the power to issue injunctions in labor disputes. Will they try to repeal the Guantanamo strippers? Probably not. When they are responsible for conducting the war, they won’t desire judicial interference any more than the Republicans do.
Sen. Charles Schumer, chairman of the Democratic Senatorial Campaign Committee, intends to make the Democrats a majority party again: “We must make sure the middle class has a strong voice in Washington.” Trouble is, November 7 exit polls showed Democrats are the party of extremes: in wealth, income, and education. For example, they ran strongest with high-school dropouts and those with graduate degrees. They have a definite problem with ordinary people. And, of course, religious people. Why not pick up the ball the Republicans dropped and pass a school-prayer stripper? It would greatly discomfit the Republicans. The middle class would like it. It would be a start.