The recent death of Justice Scalia turns the upcoming national general election into one more consequential.  Perhaps, though, the best consequence might be less consequence, or less reliance on a one size fits all public policy, whether arrived at through bipartisan consensus or codified by nine votes.

Start with a Charles C. W. Cooke observation in National Review, where he notes that Barack Hussein Obama and his brain-brothers have to work harder to fundamentally transform our politics.
Since Ronald Reagan made his first serious presidential run, in 1976, conservatism has produced a cornucopia of significant changes — not only to government policy, but to the baseline presumptions of American life. Among these alterations are the tarring and feathering of the reflexively technocratic mindset that obtained from the outset of the New Deal to the end of the 1970s; the marginalization of wage and price controls, and of other centralizing tools; the lowering of destructive tax rates on income and other forms of wealth; the deregulation of a significant number of major industries; a renewed focus on national sovereignty; the successful reform of the welfare system; a consensus around free trade; a much lower minimum wage; a focus on both the text and the original meaning of the Constitution when discussing limits on government power; the restoration of the right to keep and bear arms; the stronger protection of freedom of expression; a national partial-birth-abortion ban; the death of speech-killing “campaign-finance reform”; and, lest we forget, the peaceful dismantling of the Soviet Union. For some much-needed context, understand that the GOP’s standard-bearer in the early 1970s, Richard Nixon, was the mind behind the Environmental Protection Agency, whereas today’s Republican candidates are opposed to so many departments that they can’t always remember all of their names.

But I will not dwell on the past. Instead, I will argue that we need not look so far back to answer the charge. Rather, we can contemplate the past decade with some considerable pride. Because conservatives aim to repeal so much of the damage done by progressivism of late, we can at times feel hopeless — and even angry. In theory, we understand that the people backed Obama twice and that his veto stands proudly in the way of our getting to reverse his excesses; in practice, however, it can be tempting to assume that the lack of major progress has been the product of quiet acquiescence or tactical incompetence — or, worst of all, of deep-seated corruption.
There are significant recent gaps in one-size-fits-all policy, and the Party of Government owns its failures, in part because of what the chattering classes call "Republican obstruction."
At the state level, there would have been no marches toward right-to-work or liberalized concealed carry; no progress on school choice or eminent domain; no restrictions on late-term abortion or state-constitution amendments defining marriage; and none of the regulatory and fiscal reforms that are coaxing Americans out of the blue states and onto the red horizon. Despite voting unanimously against the bill, Republicans could not stop Obamacare. But they have managed to prevent Medicaid from being expanded universally, and they have mostly forced the federal government to own its messy system of insurance exchanges. That was no walk in the park.
Perhaps, with at least one Supreme Court appointment on the menu, it's time to let the people decide.  Here's John Kass, suggesting that what the people want is for the political establishments to back off.
Yet for all the Democratic and Republican establishment guilty hand-wringing, our founding fathers understood something many years ago that is critical to this discussion.

They understood human nature. They were experts at it. And they didn't merely bring theory and dry words from ancient clay tablets to their debates in Philadelphia as they pondered what kind of nation we'd be. They knew human needs. They knew the need to restrain human passions. And that is why they left us the Constitution, to protect our liberty at times such as these.

These days, anger keeps rising among the people. They feel they've been betrayed by the political establishment of both parties. And why do they feel this way? Because it's true.

Their jobs have been shipped overseas, there have been a series of seemingly endless wars, America seems listless or powerless overseas, the nation ages, becomes less optimistic.

What worries me is that there seems to be a growing acceptance that if we can't adapt and earn our own individual happiness, we'll just use politics and government -- and the U.S. Supreme Court -- as a club to hammer our way to sunny days on the Big Rock Candy Mountain.

That's been growing for some time now. We're ripe for it.
That the Smart People have been so spectacularly incompetent for so long makes the voters willing to try something new, even something new that Mr Kass suggests will bring a different kind of failure.
And the messianic wave that President Obama rode to the White House years ago continues. When Obama secured the Democratic nomination, he offered that famous, somewhat frightening speech in Minnesota in 2008.

That was the speech in which Obama literally promised the seas would calm and the planet would heal as he ascended to national power. You can't get any more messianic than that.

Now Donald Trump on the right -- although I hope he implodes -- and Bernie Sanders -- who is too leathery to melt -- on the left offer a similar messianic approach. High on rhetoric, low on specifics. With Donald and Bernie it's mostly about feeling.

So they appeal to the anger and offer themselves as authentic. "Authenticity" is the new journalistic buzzword these days. You can't turn on a TV political show without hearing it. Although just a few years ago the TV talking heads stroked their chins of wisdom and talked of "gravitas." It was gravitas this and gravitas that. And now it's authenticity this and that.

No wonder voters search for candidates who will go to Washington and slap the chin strokers in the mouth.
It would be better if the chin strokers, and the governing class they carry water for, had fewer responsibilities.

Although Megan McArdle would like to make the appointment and confirmation of justices less fraught, she, too, is ultimately suggesting that the governing class have fewer responsibilities.
The purpose of electing a president is therefore, in large part, the effort to stuff the court with enough judges to force your idea of what’s important on the other 300 million people with whom you share a country. The problem is that many of them disagree, and are eager to do their own stuffing, while simultaneously blocking yours.

Running more and more issues through the appellate courts, rather than struggling through the legislative process, has two terrible effects. First, it federalizes more and more issues, in an era when values and ideologies tend to be sharply partisan and geographically divided. If you were a pro-lifer in Alabama, you probably wouldn't get on a bus to Albany to protest New Yorkers' more liberal abortion laws. But when federal courts decided that abortion law would be substantially the same everywhere in the country, proponents of abortion rights and opponents of abortion became locked in a battle over the court that sets the rules.
And thus, do senatorial elections also become fraught, in ways that make for a more complex bundle of campaign promises, and a lot of pandering to the so-called single issue voters, who care about one or a few Big Things.  Thus the downside of one-policy-for-everyone jurisprudence.
Of course, when matters of such great importance are at stake, it’s very tempting to do an end run around politics, and avoid those unsatisfying compromises, by putting the question in the hands of unelected people who are, by design, removed from the passions of democracy and representative government. They can therefore rule much more sweepingly than legislators would.

But this doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.
And thus the appeal of an outsider who blames the banksters or the stupid people.  But even in a Wisconsin Club for Growth appeal for the Republican nominating carnival to sober up, there's recognition that the fundamental problem is with the Governmental Habit.
The populist insurgency that has thus far dominated the Republican primary campaigns must understand it’s time to close the bar, set the furniture back upright, and accept the necessity of a grown-up candidate with identifiable beliefs warranting confidence that the eventual court nominee will be someone who, like Scalia, believes the Constitution means what it says.
But it's more than the national government's monopoly on setting standards from the bench that's contested. The monopoly on issuing currency is also in doubt.  Although Crooked Timber's Chris Bertram is contemplating the privacy that's lost if governments abolish cash, ultimately limiting government's power to abolish cash limits government itself, full stop.
In practice this means that people whose right to remain is cancelled could almost immediately lose access to the resources they need to fight the administrative decision against them. History shows that technologies that are first piloted against one group of people can be extended to others. We face a future where people deemed by the executive to be problematic in some way could lose access to all means of payment. At least with cash you can subsist on the margins of society; without it, government control is potentially total. Perhaps this is coming sooner than we think?
That total control, incidentally, is unlikely to be the same thing as collective ownership of the means of production. At the same time, it's yet another reason for smart 'phone owners to stand with Apple and against the national government seeking a back door into otherwise secure devices.

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