It’s hard to think of a more opportune time than the Fourth of July to point out the blindingly obvious. You’ll notice this is not the day where we celebrate a minor functionary in the Sandwich Islands indicting the King of England; nor is it the day on which we celebrate catching Lord North in a minor paperwork error and hauling him before a New York judge. Somehow, a republic was established without the benefit of a wise latinks’ subpoena power.
Ultimately, it came down to raw, naked force, and the willingness of a local elite to roll the dice on controlling their own destiny on a new continent, rather than settling for being a talent reservoir for His Majesty’s intrigues on the old. There were certainly legalistic appeals and justifications, but two hundred and fifty years later, we literally do not care if they were correct. Sorry Jack, pool’s closed.
Judges find this fact unpalatable, because it highlights the extent to which their power derives from social consensus rather than, you know, power. They find themselves in an uncomfortable position where on the one hand they don’t want to be mere administrators of state power, but on the other hand, clearly cannot act in actual opposition to it. So we get histrionics about Justice and Truth and the True Spirit of Aloha instead, as they try to imply they are the mediums by which transcendent pre-political principles reflect themselves upon society, as opposed to mostly providing consistent rules for resolving minor civil disputes so everyone can get on with their lives.
The Sotomayor dissents to the big “political” cases this Supreme Court term are funny, legitimately humorous, because they take this bait so hard one is concerned that her diabeetus is subjecting her to some sort of metabolic disorder. Did you know that, according to the majority’s logic, if the President discovered the ancient Eye of Horus encased in the Capitol Crypt and summoned a powerful Egyptian demon to sacrifice the population of DC in a ritual ascending him to a God-King – he might not be able to be prosecuted? Even though you shouldn’t do that? And converting the Lincoln Memorial Reflecting Pool to drainage for a blood drenched altar is arguably in violation of the National Parks Service regulations on event permitting (although with Chevron deference also overturned, who knows)? This is very dangerous to Our Democracy!
Under the circumstances, one might suspect one has bigger things to worry about, or that more drastic measures might need to be taken, than… convening a Grand Jury. The risk you undertake in an attempted coup is that you are shot, during or after, not that you may be prosecuted for, inter alia, gazing upon Forbidden Documents. Conversely, if any official with prosecutorial power (literally tens of thousands of people, by the way) can contrive an argument that you trying to get elected is a crime, the obvious equilibrium is for you to make their arguments irrelevant. What is the penalty for losing an election, and what is the penalty for not having one?
For all their talk of Our Democracy, libs are aghast at the idea that voters might actually get to choose the Orange Beast, again, against the wishes of a guy who has literally never been voted on by anyone for anything – but as much as they would like to, they cannot simply say “we are declaring a state of exception to rid ourselves of a tyrant”. If libs engaged with this logic, they would be on a slippery slope to endorsing the American Revolution, the Second Amendment, or even America itself – horrors in their mind greater even than Trump.
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Oy vey! Even I, a world famous and much beloved rabbi… who has won countless awards, cannot make sense of this.