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The "Who Decides" Election

The opinions expressed by columnists are their own and do not necessarily represent the views of

August is off to an interesting start, with liberal elites telling large majorities of Americans that they are bigots if they oppose a mosque at Ground Zero or same sex marriage in California. These edicts to the cultural serfs from their betters in New York and San Francisco only add to the growing sense that November 2010 really is a show-down election, a conviction that was strengthened by the amazing verdict on Obamacare from the Show Me State on Tuesday.

The debates over the Ground Zero mosque and same-sex marriage are both being carried on at two levels.

In both cases there is a complicated legal debate underway, as there is in the case of Arizona's SB1070 and Virginia's challenge to Obamacare. Each of these four disputes could make for wonderful hypotheticals on a final exam in any Con Law class in the country, so not surprisingly the non-lawyers in pundit land are making a hash of it. (For an example of careful analysis of the marriage decision, see Orin Kerr's take on one small portion of Judge Walker's opinion at The Volokh Conspiracy, which demonstrates the complexity of the arguments and why almost all non-lawyers and most lawyers are going to have as tough a time with the legal issues here as they have with the preemption and Commerce Clause issues in the Arizona and Virginia cases and the Free Exercise arguments regarding GZM.)

Here's the all-purpose, all-weather analysis for all four controversies: Eventually Anthony Kennedy will tell us what the law is. Until then, it is all just so much dorm-room chatter. The Supreme Court is narrowly divided between "living Constitution" justices and "originalist" justices, and the four in each camp will be pretty predictable on the marriage, preemption, and Commerce Clause issues, though less so on the Free Exercise issue which would be at the heart of the case should the GZM ever reach the Court (which the Court almost certainly does not want it to do.)

That these three enormously important debates on marriage, immigration, and federalism all will turn on the decision of a single man is itself a profound issue, one made more obvious by the results of Tuesday night's election in Missouri where an astonishing 71% fairly screamed "stop" at the ruling elites in D.C. (Not that this matters much as the same sort of screams came out of Massachusetts in January, and Virginia and New Jersey in November of 2009. D.C. elites rolled on. Mr. Gibbs has already confirmed the president's disdain for the message from the voters of Missouri.)

The fundamental issue dividing America right now is whether the people with power represent those they govern. Democrats certainly won lots of elections in 2008, and they have large majorities in both House of Congress, but have those majorities done their job of accurately representing majoritarian opinion in the U.S.? Or did the president, campaigning as a centrist, usher in a hard left Congress and then himself lurch left?

A large majority in swing-state Missouri rejected Obamacare on Tuesday night. A majority of Californians rejected same sex marriage in November of 2008 at the same time they were providing Barack Obama with the Golden State's electoral votes. If public opinion polling is to be trusted, large majorities across the country oppose the GZM and also oppose Obamacare.

These data points which point to a disconnect between rulers and ruled, which accounts for the already great and still rising tension as we march towards November's votes.

I believe that there is a deep, deep disconnect between the elites and the mainstream, and the anger that is surging on both sides of the divide grows out of the sense that majorities are being trampled on. Left-wing activists point at the Senate and argue that a minority of Republican senators is blocking the majority's will. Center-right activists applaud those Republicans as representatives of the genuine mainstream and point to the votes and polls noted above and argue that the current Congressional majorities are false positives, unrepresentative of where the country truly is, delivered in large part by an Obama-awed MSM dominated by Journolistas moving in lock step to promote the left's agenda.

In fact we have --or ought to have-- a system of mediated majorities, or Constitutional majoritarianism. It should take a while to push the country very far in one direction or the other. We are not built for rapid change, and big elections can be false positives, as 2008 increasingly appears to have been. The refusal and arrogance of many electeds from the president and Speaker Pelosi to Mayor Bloomberg is an attempt to storm past this obvious fact, and the push back was on display in Missouri this week.

The self-righteous and angry rhetoric of scorn and indignation employed by Bloomberg and the opponents of Prop 8 this week, and routinely by the president and his Congressional allies over the past many months, provide the perfect fuel for the fires of the neopopulism of the Tea Parties. The vast majority of Tea Party participants are mainstream Americans who work hard, pay taxes --lots and lots of taxes-- and are concerned about the huge lurch left. They are fearful about the incompetence of the economic team and the vast gusher of deficit spending which continues to flow out of D.C. --another $26 billion Wednesday!-- and they are concerned that their childrens' futures are being compromised by ideological zealots. They are sick to death of the media gamesmanship of "summits" and the president's refusal to answer questions directly or to engage his political opponents with other than sneers. Nancy Pelosi and Harry Reid are the "leaders" of the left and they are mean-spirited and do not appear to be either very bright or at all good humored. Barbara Boxer's dressing down of a soldier for daring to call her ma'am is the perfect summation of the cultural divide over which this election will be fought, though Judge Walker's diktat re the overturning of thousands of years of Western civilization and Bloomberg's arrogant lecture is going to give Boxer a run for first place in the elitist sweepstakes.

So that is where we are, 98 days from what may well be a historic "U Turn" election. The stakes are very very high, and the left has gone a long way beyond their previously announced goals and agendas.

The left is, in a word, exposed. Clarity is a wonderful thing, as my friend Dennis Prager likes to say. As August unfolds, there isn't any need to guess which way the Democrats and the cultural left wants to take the country. The only question is whether the country wants to go along, and that will be answered on November 2.

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