Principles Schminciples
When you open up Pandora's Box you may not always like what comes out of it.
I have heard it said that in designing new government structures, drafters should take the approach of designing it as if their worst enemy was going to be in charge of things. Makes sense. While you are curtailing much of your own power, you are also limiting the ability of others to subjugate you to their will. This was one of the genius aspects of the US Constitution: checks and balances. The other was the concept of federalism, which limited federal power and relegated any powers not actually enumerated to the individual states.
Fast forward 235 years. The founders would no doubt fail to recognize the American system today as resembling anything they envisioned. Gone are the significant checks on the presidency as the House and Senate have failed to protect their own powers as defined in the constitution. Furthermore, the federal government has taken on so many roles for itself not explicitly enumerated that Washington DC has become a rumbling behemoth incapable to efficiently executing even the most basic of its core responsibilities.
Because of this I am often heartened by the remaining ability that states have to differentiate themselves from one another via policy priorities. I live in a very blue state surrounded by red and purple states. The last two years have been an interesting experiment as I watched friends in those states go about their lives relatively unmolested while my own leadership imposed some of the most draconian limitations on its population. This is a contrast most highly visible when comparing Texas and California. I focus on these two in particular due to some interesting developments in policy implementation that have now tied these two states in an unexpected way. And I would like to focus on one author’s writing about both of these states and a lack of consistency that I find bothersome on both sides of our political discourse.
Rick Moran, writing for PJ Media yesterday, penned an article criticizing California’s politicians for modeling gun legislation on Texas’ abortion legislation allowing individuals to sue abortion providers for violation of certain identified restrictions. Now, the rightness or wrongness of this single law is not the point of my writing today. Moran, seemingly armed with no better argument, wrote the following about this apparent end run around the second amendment:
“They did it, so why not us?” is ludicrous reasoning for passing legislation.
No one has ever accused Democrats in California of acting reasonably.
Here’s my problem: the founders, in their wisdom, viewed the states as laboratories of democracy. “They did it, so why not us?” is exactly what they presumed would take place. If a state finds something that works, then they are naturally going to consider adapting it to their own ends. Now, Moran does also point out the constitutional difference between 2A and Roe in his short piece. But it is clear, as he highlights the point at least 3 times in this piece, that the main crux of his argument hinges on how “childish and ill-tempered” California politicians are being. Yes he highlights that California is trying to do an end-run around constitutional law but isn’t that what Texas did? Trying to do an end run around the SCOTUS precedent of Roe?
And this takes me back to my original point. As legislators, Texas’ politicians in office failed to apply the “worst enemy” rule when considering this law. “But they should be governing Texas and doing what’s best for Texas citizens, not worry about stupid Californians” you might respond. “Fair point” I’d respond. But I’d go on: do you think Texas will NEVER be blue again? Ever? And IF that were to happen, would you really want to grant the legislature and the governor the tools to do in Texas what is being attempted in California?
In contemplating this I was curious why Moran didn’t view the California law in a more constitutional light rather than being a question of maturity. So I did a single Duck Duck Go search and, of course, found this article. In the article, Moran makes no case against this end run attempt and closes it out with this quote:
You can say that the "intent" of the law is to limit abortions, but if the result of the law is to make abortions safer, who cares what the intent of the bill's sponsors were? The only question that matters is whether the rules will improve the health and safety of women. And there's no argument that pro-choice crowd can make that contradicts that simple conclusion.
You see, because it accomplishes a goal he supports the end justifies the means. I was also struck by how closely Moran’s language follows what Maajid Nawaz pointed out in his 3 week-delayed Spotify interview with Joe Rogan: the good intentions of an action don’t mean that you are not enabling the government with the tools it needs to oppress you. Intentions, you see, must be cleaved from analyzing not only what a specific law does but what is likely to follow. And the lack of applying this simple principle is what has led us to the place we are now with respect to the collapse of checks and balances as well as the expansion of the federal mandate beyond any recognition of what was originally envisioned. Now, I understand that SCOTUS did not actually uphold the Texas law, it merely declined to enforce any kind of injunction and now this will have to work its way through the courts on its merits. California’s law will likely end up with the same fate. But until it gets settled at wherever the final level happens to be, how many firearms dealers will be the target of lawsuits in the meantime? How much will their insurance go up? Which other states might enact similar legislation? I have no doubt my own state legislature is contemplating something like this. Novel solutions can be a good thing if they are well thought out. But smart leaders must always consider how those novelties can also be used against them and their supporters.