Tuesday, March 29, 2005


There is no surer sign of intellectual bankruptcy (or senility) than the habit of comparing political opponents to Hitler. This type of metaphorical excess is par for the course on Air America and at MoveOn.Org. It is unusual for a Congressman.

Yet recently the very senior senator from West Virginia, Robert Byrd, compared a possible change in Senate filibuster rules for judicial appointees to the Enabling Act of 1933--the German law that concentrated absolute power in the hands of Adolf Hitler. Hitler, Byrd solemnly observed, always proceeded under "the cloak of legality." In this way the fiddling geriatric linked President Bush with the mustached Fuhrer and implied that any change in Senate rules (which Byrd himself modified as majority leader) would be tantamount to the suspension of representative government.

On the one hand we have complete concentration of authority in the hands of a dictator whose maniacal vision eventually led to a World War, at least forty million dead, and the near extermination of European Jewry. On the other we have a proposed revision of senatorial protocol. Hello, Bob! Is anyone home up there?

Let us be clear on the real issue that Byrd is addressing. Republican leaders, frustrated by unprecedented Democrat efforts to block votes on judicial nominees, now desire to revise the Senate’s rules in order to prevent filibusters on these appointees. We are not talking about changing the Constitution. We are not talking about subverting the right of Massachusetts residents to practice their unique brand of political masochism. We are talking about the "Rules of the Senate"-- which topic is covered by all of nine words in Article I, Section 5, of the Constitution: "Each house may determine the rules of its proceedings..." Had the Founding Fathers believed that democracy itself rested on this procedural point, they might have devoted at least a complete sentence to it.

What is a darn sight clearer than the superannuated senator’s hyperbolic historical analogy, is that the Founders of our country would be horrified by the way judges, in recent decades, have exchanged their limited interpretive function for the gratifying role of Philosopher-King. Thomas Jefferson in particular would be leading a new revolution to place the weight of self-government back in the hands of that branch closest to the people--the legislature.

With a finely modulated style that further miniaturizes the rantings of Senator Byrd, our third President observed: "The germ of dissolution of our federal government is in the constitution of the federal Judiciary...working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

Can anyone honestly doubt that Jefferson would conclude, in light of recent rulings on marriage, the pledge of allegiance, and capital punishment, that the judicial usurpation against which he warned is virtually complete? Would not Jefferson urge his countrymen to rise up and to reclaim sovereignty from these rapacious robed eminences? Would he not denounce these despots who delegate to the people the task of arranging deck-chairs on the ship of state while they sabotage the hull of self-government with that infinitely flexible and destructive tool: a "living Constitution"?

Were Byrd as insightful as he is loquacious and annoying, he would see that the true danger to republican government lies not in a revision of Senate cloture rules but in the continuing concentration of power in the hands of judicial elites. Indeed, the proposed change in Senate rules that Byrd portrays as Hitlerian is only a first, tentative step toward reigning in the power now capriciously wielded by Women and Men in Black. It is a step that Jefferson, if not Hitler, would heartily endorse.

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