What do you say to a guy like former Romneybot, Kory Langhofer, who seriously argues on live TV that Scalia’s vote on pending matters should still count, even if he is dead? Actually, Tom Ryan’s response is pitch perfect:
“The general rule is dead justices don’t vote,” Ryan said. “I mean, that sounds cruel, but that’s it.”
I’m going to assume that calling it a “general rule” that dead justices can’t vote is Ryan’s attempt at humor, because calling Langhofer’s argument “crazy” is an insult to crazy people. This fever dream sounds like something they had to edit out of Deadpool because the producers were afraid the audience would reject it as over the top.
Over the last fifteen years, we have seen some crazy stuff come out of the foaming mouths of Republicans hell-bent on having their way, but this is some seriously next-level crazy. Donald Rumsfeld would have been embarrassed to argue this. Michelle Bachmann at her wildest couldn’t have come up with this. Hell, Rush Limbaugh in his most drug-induced haze couldn’t have pulled this out of his butt. For me, the most surreal part of this latest batch of crazy is seeing it treated like “serious” thinking. This isn’t about red pills or blue pills. This is what you get when you take everything in the medicine chest and follow it with flaming jello shots of absinthe.
Now I realize the folks who yammer on about “original intent” only do that when they intend to do whatever they want in the first place, but this is one of those moments when it’s worth looking at what the Founding Fathers actually said when discussing the matter. Unlike Scalia’s vote, we don’t need a Ouija Board to discern their intentions. Jefferson wrote it down. In English. And sent it to Madison. While both of them were still alive.
The reason Jefferson wrote to Madison about the Constitution was that Jefferson was not at the Constitutional Convention. He was busy in France carrying out his diplomatic duties. That didn’t mean he was not involved in matters back home. While Jefferson was in France serving as United States minister, he was able to influence the development of the federal government through his correspondence. The matter of “the dead hand” actually came up in one of his letters to Madison.
The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society.
Even if you don’t know what “usufruct” means(1), it is still clear what Jefferson is saying. If Langhofer’s argument is a harbinger of things to come, I can’t wait to hear what the next “serious” reservation will be to Obama’s filling the vacancy. Watching the mental gymnastics required to sustain this house of cards is simply astounding. It’s like watching Mike Tyson explore his feelings for Kanye West through the medium of interpretive dance. I have no idea what that means, but that’s because it is crazy. Here’s one thing I do know. Anyone who claims to be a “strict constructionist” while arguing the dead hand of Scalia can still vote is Mything The Point.
(1) Usufruct: The legal right of using and enjoying the fruits or profits of something belonging to another (from Latin usus et fructus: “use and enjoyment”)