I was listening to Judge Michael Luttig the other day.\u00a0\u00a0If you don\u2019t know, Judge Luttig was a \u201cshining star\u201d of the Federalist Society, retired from the Federal Appellate Court.\u00a0\u00a0He was (and to many, still is) the conservative alternative to \u201cliberal\u201d folks like Harvard Professor Lawrence Tribe.\u00a0\u00a0Judge Luttig speaks slower than he did \u201cback in the day\u201d, a stroke took its toll.\u00a0\u00a0But his mind is still sharp.\u00a0\u00a0<\/p>\n\n\n\n
He looks at our current government as the antithesis of what \u201cconservative\u201d government is all about.\u00a0\u00a0When he talks about the Constitution, it has little to do with our current runaway executive, granted a full \u201cget out of jail free card\u201d from the United States Supreme Court.\u00a0\u00a0Luttig believes in Madisonian checks and balances, and sees most of his former Federalist Society colleagues jettisoning history in order to gain and maintain power.\u00a0\u00a0It clearly saddens him, a life work betrayed not by his adversaries, but by his allies.<\/p>\n\n\n\n
What made me sad was that the Judge could see no way \u201cback\u201d to the Constitutional government we once depended upon.\u00a0\u00a0Even if Democrats regain some power in November,\u00a0\u00a0even if Trump is finally done in 2028; Judge Luttig sees our nation as altered.\u00a0\u00a0What will come out of this will be different, our past system beyond repair.<\/p>\n\n\n\n
I don\u2019t pretend to speak for Judge Luttig. But I do think I have an idea about what he means.<\/p>\n\n\n\n
The Founding Fathers were conflicted men.\u00a0\u00a0We know this:\u00a0\u00a0they wrote of \u201cliberty\u201d, of \u201call men are created equal\u201d, while enslaving humans.\u00a0\u00a0And they had differing ideas of what the government should look like.\u00a0\u00a0These same men who fought the Revolution, fought just as hard for their own ideas of what the American experiment should be.\u00a0\u00a0<\/p>\n\n\n\n
As a history teacher, I taught about that chamber in Philadelphia in 1787, hot in the August sun, the windows nailed shut for privacy, where the Founders crafted the Constitution.\u00a0\u00a0I tried to give my students a sense of what political men of strong feelings did; crafting compromises between small and large states, northern and southern states, those who wanted a strong executive and those who feared it.<\/p>\n\n\n\n
But I didn\u2019t usually mention the men who weren\u2019t there.\u00a0\u00a0For example, Virginia elected Patrick Henry (of \u201cgive me liberty, or give me death\u201d fame) as a delegate, but he refused to go.\u00a0\u00a0The goal of the convention, to create a stronger Federal government to resolve the problems of the current confederation of states, was an anathema to him.\u00a0\u00a0He fought the Constitution from outside the room, debating against ratification in Virginia.\u00a0\u00a0It was Henry\u2019s opposition, in part, that required Madison to author the Bill of Rights, outlining specifically the rights of individuals in this new Constitutional structure.<\/p>\n\n\n\n
Henry remained opposed to the Constitution.\u00a0\u00a0By 1799, a dozen years after the ratification,\u00a0\u00a0both Virginia and Kentucky wrote Resolutions raising the state above Federal authority.\u00a0\u00a0It threatened the very structure of the Nation.\u00a0\u00a0Henry\u2019s former President and fellow Virginian, George Washington, persuaded him to work from within the new system.\u00a0\u00a0\u00a0<\/p>\n\n\n\n
\nIf I have erroneously supposed that your sentiments on these subjects are in unison with mine; or if I have assumed a liberty which the occasion does not warrant, I must conclude as I began, with praying that my motives may be received as an apology; and that my fear, that the tranquillity of the Union, and of this State in particular, is hastening to an awful crisis, have extorted them from me. With great, and very sincere regard and respect, I am\u2014Dear Sir Your Most Obedt & Very Hble Servt.<\/p>\n\n\n\n
Go: Washington<\/p>\n<\/blockquote>\n\n\n\n
Henry changed his view.\u00a0\u00a0He once again gained a seat in the House of Burgesses, this time to defend the Constitution.\u00a0\u00a0He gave a pivotal speech against the anti-Constitutional Resolution, in spite of the cancer that was already ravaging his body.\u00a0<\/p>\n\n\n\n
It was near the end of both of their lives.\u00a0\u00a0Henry (63) died before he could officially take his seat.\u00a0\u00a0Washington (67) died at the end of the year.\u00a0\u00a0But some of their last acts were to defend the Constitution.\u00a0\u00a0They were two men, two old friends; who overcame differences to protect the Nation.<\/p>\n\n\n\n
Failed Norms<\/h2>\n\n\n\n
The Founding Fathers, as flawed as they might be, created a Nation.\u00a0\u00a0Much of their work was done in what we would now call a \u201cpolitical\u201d way, \u201cwheeling and dealing\u201d.\u00a0\u00a0A handshake, the word of an opponent, was enough to \u201cseal the deal\u201d.\u00a0\u00a0Much of the founding structure of the United States was, literally, a gentlemen\u2019s agreement.<\/p>\n\n\n\n
Can you imagine that happening today?<\/p>\n\n\n\n
Judge Luttig knows that \u201cthe old way\u201d was based on precedent, what we call \u201cnorms\u201d.\u00a0\u00a0That the actions of men like Washington or Lincoln or Patrick Henry established the pattern of our government, not necessarily by rule, but by tradition.\u00a0\u00a0But the traditions, the \u201cnorms\u201d, no longer matter.\u00a0\u00a0The new standard is that our leaders do whatever they can get away with, and perhaps even beyond that.\u00a0\u00a0It there\u2019s not a law against it, do it.\u00a0\u00a0If there is a law against it, break it.<\/p>\n\n\n\n
The fact that President Biden allowed the Justice Department to investigate and even bring charges against his own son, seems a little quaint in today\u2019s environment, only three years later.<\/p>\n\n\n\n
There are no more gentleman\u2019s agreements.\u00a0\u00a0\u00a0<\/p>\n\n\n\n
Black Letter Law<\/h2>\n\n\n\n
Luttig is an older man, five years older than Washington at his death.\u00a0\u00a0He knows that even if our Nation begins to undo the damage done, it is a generational task, far beyond his lifespan.\u00a0\u00a0There is an obvious sadness in him, the knowledge that what he thought was inviolable, indestructible, he will not see again.\u00a0\u00a0All he can do is stop the bleeding, and begin the healing of America.\u00a0\u00a0He can foresee what must be done, even beyond his own remaining years.\u00a0<\/p>\n\n\n\n
I can\u2019t speak for Judge Luttig.\u00a0\u00a0But as an older man (two years younger than Luttig, three years older than Washington at his death), I look to our future.\u00a0\u00a0I can prescribe what must come next, to avoid the growing shadow of an authoritarian America, even if I might not live to see it.\u00a0\u00a0Gentleman\u2019s rules can no longer apply.\u00a0\u00a0Norms can no longer be depended on.<\/p>\n\n\n\n
We need the \u201ccold steel\u201d of black letter law.\u00a0\u00a0And we need to begin in January, or we may never begin at all.<\/p>\n","protected":false},"excerpt":{"rendered":"