One of the almost amusing features of UD is to observe threads largely dodged by inveterate objectors (given the known, intense hostile scrutiny we face). One of those threads, recently, has been the discussion of Judge Amy Barrett and the hearings she faces. However, in the course of some discussion some themes were sounded that are worth further focus, so, let us headline some of these.
A good start point is with a Washington Post Op Ed by Brian Leiter, a professor at the University of Chicago Law School:
Let’s start telling the truth about what the Supreme Court does
Opinion by Brian Leiter
March 19, 2017
Ordinary Americans may be understandably perplexed by the controversy over nominating a judge to the highest court in the land. Isn’t appointing a top judge like appointing a top chemist? You want someone technically competent and professionally responsible, and that is all.
But all lawyers and all political insiders making the choices know that is not so. Appointing a judge to the Supreme Court is much more like appointing a head chef to a complex kitchen than appointing a skilled technician to apply scientific laws to determinate facts. The chef’s tastes and preferences matter, no matter his or her technical competence in the kitchen . . . .
Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power: They have to decide what should be done based on their own moral and political values, since existing legal standards conflict, or are indeterminate, or are silent on the problems they confront. The Supreme Court, as the final court of appeal in our system, is the super-legislature of last resort.
This is utterly, tellingly, wrong-headed.
Especially, once we understand that Judges at relevant levels are appointed for life, and so are not accountable to the people for their decisions. Where, patently, those who make and impose super-laws by being a super-legislature have usurped the power of law-making from the people and their elected, accountable representatives. This is oligarchy, not constitutional democracy, with the door lo lawless, nihilistic tyranny yawning open. Such a usurpation then readily explains how for nearly fifty years the mass slaughter of our living posterity in the womb has been established under false colour of law, with just the American toll being in excess of 60 millions (the global being well north of 800 millions, with hints of 1.4 billion being on the table).
Further to this, a reader X observes aptly, ” . . . ‘constitutional jurisprudence’ is merely the illegitimate usurpation of power by the judicial branch. The only reason there has not been a revolution is that half the people are OK with the results of the power grab and the other half think they can overturn it by hard political work. That is why the court packing issue may well be the spark that touches off the next civil war. Conservatives have been playing by the rules trying to get a conservative majority on the court for 50 years. It should have happened a long time ago, because all Republican presidential candidates promise to appoint conservative justices. But we have been betrayed time and again. But if we finally do get a majority poised to roll back some of the worst abuses only to have the prize snatched away — like Lucy pulling away the football — that, in my view, will be end. Conservatives, lying flat on their back like Charlie Brown, will finally realize that they game is rigged so that they can never win. They will realize that the only solution is to give up and slink away, as European conservatives have done, or fight back.”
Anyone with the slightest acquaintance of the temper of the “deplorable” people of the American hinterlands (originally rooted in the Scotch-Irish Celtic culture) will realise immediately that the shadowy 4th generation civil war that has been sputtering for years now threatens to flash over into a full bore conflagration.
For, Court Packing — never mind sly cynical propagandistic attempts to pretend that fighting to appoint judicious judges is “packing” — by inserting a new slate of dyed- in- the- wool usurpationists in the next year or so would mark the end of Constitutional Republic of democratic character and its permanent replacement by lawless oligarchy operating under false colour, robes and ceremonies of law.
The Celts and their physical and spiritual heirs will fight. And don’t forget, that includes a lot more “people of colour” than you might imagine.
So, how do we avert needless catastrophe?
First, I am beginning to be inclined to the view that Constitutions now require an educational preamble that not only speaks to circumstances (including history), aspirations and concerns but to first principles of law coeval with our humanity (i.e. “natural law”) . . . including, explicit reference to the universality of said principles built into us as responsible, rational, morally governed creatures bound to the due balance of rights, freedoms and responsibilities (i.e. to justice) . . . and a commitment to canons of good government and wider governance. In the case of the US Constitution, the DoI of 1776 serves an educational function and frames the whole on first principles of natural law. And as a natural law document — contrary to common assertions — it does claim legal, generally binding force in that aspect. It should be seen in that light as being comparable to Magna Carta.
Magna Carta, 1215:
“+ (39) No free man [–> who, then shall be free of right?] shall be seized or imprisoned, or stripped of his rights [–> which are . . .?] or possessions or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him or send others to do so, except by the lawful judgment of his equals or by the law of the land [–> rule of law, judgement by peers]
+ (40) To no one will we sell, to no one deny or delay right or justice.“
Let us duly note, the parallel force of the US DoI, 1776:
When . . . it becomes necessary for one people . . . to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, [cf Rom 1:18 – 21, 2:14 – 15; note, law as “the highest reason,” per Cicero on received consensus], that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security . . . .
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions [Cf. Judges 11:27], do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Of course the US Constitution was a second attempt to deliver on new government, and was legitimate through this, even though the specific remit of the convention was exceeded. It then went to referenda for ratification to demonstrate consent of the governed. As one aspect, in response to demands of the public (long since shown to be sound), ten Amendments constituting a bill of rights, were passed with the Constitution, echoing and building on the fruit of the Glorious Revolution of 1688/89.
So, too, to fix the problem and avert needless catastrophe — and this sort of thinking is widespread in our civilisation, not just the USA — we need to reassess what law is at root and how our tendency to wrench it into rules imposed by power-holders distorts that.
Webster’s 1828 is helpful:
LAW, noun [Latin lex; from the root of lay. See lay. A law is that which is laid, set or fixed, like statute, constitution, from Latin statuo.]
1. A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions. Laws are imperative or mandatory, commanding what shall be done; prohibitory, restraining from what is to be forborn; or permissive, declaring what may be done without incurring a penalty. The laws which enjoin the duties of piety and morality, are prescribed by God and found in the Scriptures.
LAW is beneficence acting by rule.
2. Municipal law is a rule of civil conduct prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear; a statute.
Municipal or civil laws are established by the decrees, edicts or ordinances of absolute princes, as emperors and kings, or by the formal acts of the legislatures of free states. law therefore is sometimes equivalent to decree, edict, or ordinance.
3. law of nature, is a rule of conduct arising out of the natural relations of human beings established by the Creator, and existing prior to any positive precept. Thus it is a law of nature, that one man should not injure another, and murder and fraud would be crimes, independent of any prohibition from a supreme power.
Here, we see law as a function of government, setting and upholding rules of civilised conduct, but with due recognition of an underlying regulation built into our rational, responsible, significantly free, morally governed nature. That regulation is testified to by sound conscience and the counsels of prudence, shaped by recognising others of like nature as our neighbours. In that context, justice is the due balance of rights, freedoms and responsibilities.
That accountability restrains rules and rulings issued under colour of law, with the further premises of constitutional democracy that the judiciary should be politically independent, impartial, and should seek to elucidate, balance and apply the law rather than try to rewrite it under colour of making due judgements guided by objective facts and sound canons of correct interpretation. Where, antecedently, laws to be duly passed are bound under the duty of justice; as error is possible, provision for due deliberation, checks and balances on passage and for effective means of amendment are required.
Such is particularly important as judges are generally not accountable before the electorate on a periodic basis. Those who issue law should be accountable to the people so that the collective right of reformation can be applied. If instead judges and courts become an ideologised unaccountable oligarchy, the resulting polarisation, manipulation and domination open the door to the proverbial long train of abuses and usurpations; then, the time for drastic reformation has come.
As a further pointer, let us hear a voice from 1856; before the current rot took root:
INTERPRETATION. The explication of a law, agreement, will, or other instrument, which appears obscure or ambiguous.
2. The object of interpretation is to find out or collect the intention of the maker of the instrument, either from his own words, or from other conjectures, or both. It may then be divided into three sorts, according to the different means it makes use of for obtaining its end.
3. These three sorts of interpretations are either literal, rational, or mixed. When we collect the intention of the writer from his words only, as they lie before us, this is a literal interpretation. When his words do not express his intention perfectly, but either exceed it, or fall short of it, so that we are to collect it from probable or rational conjectures only, this is rational interpretation and when his words, though they do express his intention, when rightly understood, are in themselves. of doubtful meaning, and we are forced to have recourse to like conjectures to find out in what sense he used them this sort of interpretation is mixed; it is partly literal, and partly rational.
4. According to the civilians there are three sorts of interpretations, the authentic, the usual, and the doctrinal.
5.-1. The authentic interpretation is that which refers to the legislator himself, in order to fix the sense of the law.
6.-2. When the judge interprets the law so as to accord with prior decisions, the interpretation is called usual.
7.-3. It is doctrinal when it is made agreeably to rules of science. The Commentaries of learned lawyers in this case furnish the greatest assistance. This last kind of interpretation is itself divided into, three distinct classes. Doctrinal interpretation is extensive, restrictive, or declaratory. 1st. It is extensive whenever the reason of the law has a more enlarged sense than its terms, and it is consequently applied to a case which had not been explained. 2d. On the contrary, it is restrictive when the expressions of the law have a greater latitude than its reasons, so that by a restricted interpretation, an exception is made in a case which the law does not seem to have embraced. 3d. When the reason of the law and the terms in which it is conceived agree, and it is only necessary to explain them to have the sense complete, the interpretation is declaratory. 8. The term interpretation is used by foreign jurists in nearly the same sense that we use the word construction. (q. v.)
9. Pothier, in his excellent treatise on Obligations, lays down the following rules for the interpretation of contracts:
10.-1. We ought to examine what was the common, intention of the contracting parties rather than the grammatical sense of the terms.
11.-2. When a clause is capable of two significations, it should be understood in that which will have some operation rather than, that in which it will have none.
12.-3. Where the terms of a contract are capable of two significations, we ought to understand them in the sense which is most agreeable to the nature of the contract.
13.-4. Any thing, which may appear ambiguous in the terms of a contract, may be explained by the common use of those terms in the country where it is made.
14.-5. Usage is of so much authority in the interpretation of agreements, that a contract is understood to contain the customary clauses although they are not expressed; in contractibus tacite veniunt ea quae sunt moris et consuetudinis.
15.-6. We ought to interpret one clause by the others contained in the same act, whether they precede or follow it.
16.-7. In case of doubt, a clause ought to be interpreted against the person who stipulates anything, and in discharge of the person who contracts the obligation.
17.-8. However general the terms may be in which an agreement is conceived, it only comprises those things respecting which it appears that the contracting parties proposed to contract, and not others which they never thought of.
18.-9. When the object of the agreement is to include universally everything of a given nature, (une universalite de choses) the general description will comprise all particular articles, although they may not have been in the knowledge, of the parties. We may state, as an example of this rule, an engagement which I make with you to abandon my share in a succession for a certain sum. This agreement includes everything which makes part of the succession, whether known or not; our intention was to contract for the whole. Therefore it is decided, that I cannot object to the agreement, under pretence that considerable property has been found to belong to the succession of which we had not any knowledge.
19.-10. When a case is expressed in a contract on account of any doubt which there may be whether the engagement resulting from the contract would. extend to such case, the parties are not thereby understood to restrain the extent which the engagement has of right, in respect to all cases not expressed.
20.-11. In contracts as well as in testaments, a clause conceived in the plural may be frequently distributed into several particular classes.
21.-12. That which is at the end of a phrase commonly refers to the whole phrase, and not only to that which immediately precedes it, provided it agrees in gender and number with the whole phrase.
22. For instance, if in the contract for sale of a farm, it is said to be sold with all the corn, small grain, fruits and wine that have been got this year, the terms, that have been got this year, refer to the whole phrase, and not to the wine only, and consequently the old corn is not less excepted than the old wine; it would be otherwise if it had been said, all the wine that has been got this year, for the expression is in the singular, and only refers to the wine and not to the rest of the phrase, with which it does not agree in number. Vide 1 Bouv. Inst. n. 86, et seq.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
Let us contrast here, [a:] due interpretation on laws informed by context, relevance, comparable cases and precedents (a fortiori reasoning) and [b:] making up and imposing colour- of- law decrees by abuse of judicial position.
A bit of borrowing from Biblical hermeneutics [the classic context in which interpretation of longstanding text was developed as a full technical art], will help. We thus contrast EXEGESIS, drawing out of text what is truly there as manifested in text [so, relevant language study], grammar, history, context, genre etc with EISEGESIS that reads into the text what cannot justly be drawn out of it. And of course we have whole cloth INVENTION and imposition of traditions that layer by layer may twist A into ~A.
Obviously, we are prone to error and interests may gradually impose their will, then demand superseding of what was original by the tradition and power structures they impose. This leads to the right and power of reformation, and if necessary revolution — where, the general election is a structured means of audit, replacement, reform and revolution. Here, however, there is not an unlimited power to vote in injustice and folly, hence the underlying premise of intelligible natural, built in law rooted in justice (so, in the due balance of rights, freedoms and responsibilities of significantly free, morally governed creatures). Hence, the inescapable thus self-evident first principles and duties of reason:
– to truth,
– to right reason,
– to prudence,
– to sound conscience,
– to neighbour, so too
– to fairness and
– to justice, etc.
(NB: The objector, in trying to persuade us is forced to appeal to what s/he would deny, ending in self-defeat. Undeniable truth antecedent to argument that we must recognise in order to act rationally and responsibly.)
Notice, these first duties INCLUDE first principles of right reason, i.e. identity, non-contradiction, excluded middle and many other principles. There is a reason why Cicero noted that the received consensus of his time was that law is “highest reason,” applied to moral government, i.e. justice. Where a fortiori reasoning is particularly relevant in legal contexts: how much more so, likewise, etc.
Now, this readily becomes complex and technical, and law is notorious for obscure, rare, exacting terms, some still in the Latin or French [the French speaking Vikings of Normandy managed to conquer Saxon England in 1066) as we just saw. Such exactitude is tedious but often necessary in contexts where one must reckon with many factors and potential pitfalls. So, we need the studious and judicious . . . precisely what Mrs Barrett manifestly is, and precisely what so many obviously do not want to the point of throwing public tantrums.
A sobering sign.
In the case of the USA, the flash-point is clearly the holocaust of 63+ million of living posterity in the womb. Just by itself,this is a long train of abuses and usurpations, and there are others.
The half-century patience to seek to restore judges who rule under the law rather than making it out of whole cloth, reflects a lawful intent of those seeking reform. And here, they are acting through representatives duly in office through proper election. Now, that has reached tipping point, after nearly 50 years of an arbitrary and murderously unjust ruling that has cost 63 millions their lives and has led to distortion and corruption of government, media, key professions and much more.
Accordingly, those who have been trying to paint this as illegitimate or even nazi-like are telling us a lot about themselves.
The threat to try to overturn this point by imposing a slate of additional judges to carry forward injustice under colour of law, so called court packing; therefore speaks. If it succeeds, predictably, the American constitutional framework will be drastically, radically rewritten, through a patently lawless oligarchy. Flash-over point will have been reached. A lesson of Ac 27, is that we must be ever so careful as to what we vote for, given potential consequences.
The consequences of such court packing and usurpation would be horrific.
Not only for the USA but the whole world. We are all stakeholders on this; it is not just mere political moves and countermoves for one jurisdiction among many.
Instead, let those who have enabled the ideologisation and corruption of courts into legislatures stop. Argue whatever case can be made that the unborn have no natural law right to life and pass it through legislatures, then let such pass constitutional muster.
In the end, history will judge.
Already, the ghosts of 800+ million moan out their verdict, utterly indicting us. It is time for sound reformation. END