Baseball season gets underway this week, a welcome distraction from the political battles in Washington.

Meanwhile, the U.S. Senate is warring over the confirmation of Supreme Court nominee Neil Gorsuch.  The Republicans say he’s a stellar nominee, a judicial umpire who calls balls and strikes as he sees them.  Democrats, led by New York’s Charles Schumer, however, say the judge is a creature of “special interests” who would slide into a base with spikes up and who deserves to be filibustered.

Who are those “special interests” you might ask? Well, they would be anyone who disagrees with progressives, which the November election indicated is at least half the country if not more.

The Republicans say Judge Gorsuch will help the Court return to constitutional principles.  Democrats claim that he will “undo the gains” made by decades of liberal jurisprudence.  We can only pray that they’re both right.

Over the years, federal courts – especially the U.S. Supreme Court – acquired an out-sized role in the nation’s affairs, especially during Franklin Roosevelt’s administration.  Think of the federal government as a three-bodied creature, with one of the bodies in a black robe towering over the others with a giant Nancy Pelosi gavel.

Restraining the U.S. Supreme Court’s power, even slightly, has been a non-starter.  Congress is packed with lawyers who dream of serving on or before the highest bench someday.  It’s also an open secret that many politicians are relieved when hot button issues slide off their plates and directly onto the Court’s docket.

Nonetheless, given the Court’s near-omnipotence, the central question of what constitutes lawful authority will dominate public discussion in years to come, especially if there is a conservative majority.  Right now, “lawful authority” is in the eye of the beholder on many levels.

For example, progressives applauded a federal judge in Washington State in February for overruling President Trump’s order temporarily barring immigrants from seven terror-prone Muslim-majority nations.  The judge snapped his fingers, extending constitutional rights to foreigners not even in this country and accused Mr. Trump of racist motives for good measure.  Another judge in Hawaii piled on last week by ruling against Mr. Trump’s re-written order affecting six countries. Progressives again cheered.

On the other hand, when a federal judge in Texas ruled in 2015 that President Obama had usurped congressional authority with executive actions shielding five million illegal immigrants from deportation, progressives pledged resistance and urged people to take to the streets.

Progressives look with favor on the 500 or so “sanctuary” cities that refuse to cooperate with federal immigration laws and procedures.  Conscience, they say, overrides mere lawfulness.  Except, of course, when it comes to Christian bakers, florists, wedding planners and photographers. They must be forced by law to violate theirs.

Only a few months ago, progressives cheered an edict from the Obama Administration ordering all school systems in America to accommodate female-identified males in girls’ restrooms and locker rooms or risk losing federal funds.  Can’t these schools follow the rule of law?

And what about those scoundrels, the Little Sisters of the Poor, or Hobby Lobby and other Christian-owned businesses that don’t want to obey Obamacare’s abortifacient mandate?  What are they trying to do, provoke anarchy?

When the U.S. Supreme Court in Citizens United restored collective political free speech, President Obama pilloried the justices in person during the 2010 State of the Union address, badly misrepresenting the facts of the ruling.  Fellow progressives vowed to see the opinion overturned.

But when the U.S. Supreme Court in Obergefell v. Hodges invented a “right” to same-sex marriage in the penumbras of the Constitution in 2015, overriding state marriage laws – 31 of them constitutional amendments approved by voters – progressives instantly pronounced it “settled law.”

They said the same about the Roe v. Wade ruling in 1973 that struck down abortion laws in every state – “settled law.”

If these examples leave you confused about what is actually lawful authority, don’t worry.  We have an omniscient media to explain it to us.  If they feature lots of people “hailing” a ruling or order, you can bet it’s about another judicial or executive demolition job on America’s heritage, the Constitution, founding values and genuine civil rights.  If they quote lots of people condemning the ruling or order as an abuse of authority, it’s a clear victory for constitutional governance.

To progressives and the lockstep media, legitimate authority means only advancing progressive causes.  If so, it’s no big deal for liberal presidents or judges to run outside the baselines when they need to score some runs.

This article was originally posted at Townhall.com

Written by Mark. J. Fitzgibbons

The importance of Justice Antonin Scalia, who passed away this past weekend, is based not just in what he said in his U.S. Supreme Court opinions, but how he said it.

Famous for his biting and even entertaining dissents, Scalia at times (and usually the right ones) expressed a common sense moral outrage at both his liberal and less consistent conservative colleagues. He was the ‘everyman’ in his outrage, saying what we might want to say about their departures from sound constitutional jurisprudence, but far more gifted with a legal genius shaped by an originalist view of the Constitution — and a wittiness that made conservatives smile and chuckle.

His flamboyant style of writing legal opinions made him what marketing guru Seth Godin calls a “purple cow.” He stood out in a field of more common brown cows. But more than that, it was the boldness of his style that made him an intellectual leader for originalism. In a city and system of institutions that tend to stifle and hold back the candid, he made candor about the original intent of the Constitution his brand.

He gave conservatives hope that the Constitution would not be lost for a lack of honesty or standing by principle, the shortage of which are trademarks of Washington and government.

Scalia understood that American constitutional law is based in the morality that civil society should be structured such that we should do no harm to others. The “we” includes government. The Constitution is structured to limit government’s harm to individuals and our God-given rights. Scalia understood the need for judicial fidelity to that structure.

This rule of law over government itself is a key to originalism, and creates a bright-line contrast with the progressive view that the ends of those in government are at least almost always what are best for the rest of us despite transgressing the Constitution. The Founders understood both the perpetual necessity and dangers of government, and therefore structured the governing law over government — the Constitution — to limit the dangers.

Scalia was criticized by liberals in the legal profession, particularly academicians, for his famously biting opinions. Some claimed Scalia’s ‘zingers’ created contempt for the courts. To the contrary, it was Scalia’s deep and passionate respect for the role of the courts in our constitutional structure that led to his judicial poking at how some judges have an inflated and faulty sense of their authority.

In his dissent to the 2015 Obergefell v. Hodges decision recognizing a constitutional right to gay marriage, for example, he wrote this about the majority opinion: “I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of [founding-era Supreme Court Justices] John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Justice Scalia was certainly not above growing in his understanding of the Bill of Rights. Known to many as a law-and-order conservative, Scalia nevertheless wrote one of the most important decisions in recent decades about the protections guaranteed under the Fourth Amendment for searches and seizures.

His majority opinion in U.S. v. Jones from 2012 brought the Fourth Amendment back to its roots in concepts of “trespass.” His opinion countered a dangerous neglect of property rights by progressives who, not fond of property rights, favored a less comprehensive “privacy” focus, which had controlled Fourth Amendment jurisprudence for some decades to the exclusion of a property rights approach.

Scalia wrote,

[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates . . . But as we have discussed, the . . . reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.

Scalia led for civil liberties by returning to this originalist understanding of the Fourth Amendment, which mentions property but not privacy. The common law concepts of trespass on our persons and property, and our rights in their security vis-a-vis others who seek to intrude on that security, are broader that mere privacy. Scalia recognized in this opinion that to prevent harm — but only after following basic procedures or protocols designed to limit abuses by government — may searches and seizures occur. When government neglects the notions of trespass inherent in the Fourth Amendment, even our privacy is threatened.

Scalia also became more of a First Amendment champion. His disappointing dissent in McIntryre v. Ohio Election Commission from 1995 about anonymous political speech was countered by Justice Clarence Thomas in a short treatise on the subject in the form of a concurring opinion.

Scalia would later become one of the most reliable justices on the First Amendment. In expressly targeting the “dangerous dissent” by Justice Stevens in the Citizens United case, Scalia exposed Stevens’ poor attempt to come across as using an originalist approach against the First Amendment. Stevens, no originalist, was throttled by Scalia’s scathing concurring opinion:

The Framers didn’t like corporations, the [Stevens] dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text. But the dissent’s distortion of proper analysis is even worse than that. Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are (“there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment ] would preclude regulatory distinctions based on the corporate form.”

As the life and work of Justice Scalia are honored and remembered, conservatives would do well to be grateful for his bold leadership on behalf of the originalist moorings of constitutional jurisprudence.

This article was originally posted at AmericanThinker.com