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Judge Amy Barrett and positivist “constitutional jurisprudence” as usurpation, vs., the natural law (and the natural/original sense of a Constitution)

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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).

Pulling the football — yet again

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

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 revolutionwhere, 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

31 Replies to “Judge Amy Barrett and positivist “constitutional jurisprudence” as usurpation, vs., the natural law (and the natural/original sense of a Constitution)

  1. 1
    kairosfocus says:

    Judge Amy Barrett and positivist “constitutional jurisprudence” as usurpation, vs., the natural law (and the natural/original sense of a Constitution)

    –> Mene, mene, tekel, parsin?

  2. 2
    Barry Arrington says:

    KF, I certainly agree that education is important, and much confusion about the role of the courts can be cleared up with a simple civics primer. But the real issue for elites goes much deeper. It lies at the world root level. For materialists, law is simply a power game with no rules other than “to the victor the spoils.” Legitimate and illegitimate are literally meaningless concepts to a person who rejects the existence of objective morally binding norms of jurisprudence. For such, “legitimate” is another word for “what one can get away with by cobbling together five votes.” Justice White in dissent famously called Roe the “exercise of raw judicial power.” Might (in the form of five votes) makes right. For those who subscribe to such a judicial philosophy (which includes I estimate well over 90% of law professors) education about the structure of the constitution and the proper role of the law will fall on deaf ears. Believe me, they already know what they are doing is contrary to the text, structure and history of the Constitution. They don’t care.

    Here is the problem with “living document” constitutional law. It has no limiting principle. If the document does not mean what it plainly says, it means nothing at all. And that means any given judge can do whatever he wants. Our “robed masters” (Justice Scalia’s words) have been pushing us for a long time now. One wonders if there is a limit before a civil war starts. After all, one can argue that under the principles of the DoI, one should have already started. On a vast swath of issue the USA is no longer being ruled by the consent of the governed. Instead, it is being ruled by the diktats of a majority of a committee of nine lawyers. I know a lot of lawyers. Believe me, that is no way to be ruled.

  3. 3
    OldArmy94 says:

    In my view, we have given far too much power to the Judicial Branch. They should not have the right to “trump”, pardon the pun, the other two branches as they often do. Judge-shopping is a popular pastime for those who seek to get their way whenever duly-enacted laws and administrative actions run afoul of their agendas. I think it was Justice Thomas who said that we need to seriously look at this distortion of power and take action to address it.

  4. 4
    kairosfocus says:

    BA,

    first, the civil war is already in progress, just at 4g, so far low kinetic level and of course the USSC and linked circumstances are one of the battlefields. the question, is how much it will flare up over the coming weeks and months before strategic decision is made.

    Of course, at what needless geostrategic cost.

    I agree, we are dealing with the nihilism of might and manipulation make ‘right’/ ‘rights’/ ‘justice’/ ‘law’/ ‘knowledge’/ ‘logic’/ ‘reasoning’/ ‘warrant’/ ‘truth,’ etc. Already a sobering sign.

    However, we are not left to empty protest, we can start with built in law coeval with our humanity and its rational, responsible freedom, pivoting on the first duties of reason and where they point. As I have recently expanded a summary:

    We can readily identify at least seven inescapable first duties of reason. “Inescapable,” as they are so antecedent to reasoning that even the objector implicitly appeals to them; i.e. they are self-evident. Namely, duties, to truth, to right reason, to prudence, to sound conscience, to neighbour; so also, to fairness and justice etc. Such built-in . . . thus, universal . . . law is not invented by parliaments, kings or courts, nor can these principles and duties be abolished by such; they are recognised, often implicitly as an indelible part of our evident nature. Hence, “natural law,” coeval with our humanity, famously phrased in terms of “self-evident . . . rights . . . endowed by our Creator” in the US Declaration of Independence, 1776. (Cf. Cicero in De Legibus, c. 50 BC.) Indeed, it is on this framework that we can set out to soundly understand and duly balance rights, freedoms and duties; which is justice, the pivot of law. The legitimate main task of government, then, is to uphold and defend the civil peace of justice through sound community order reflecting the built in, intelligible law of our nature. Where, as my right implies your duty a true right is a binding moral claim to be respected in life, liberty, honestly aquired property, innocent reputation etc. To so justly claim a right, one must therefore demonstrably be in the right. Likewise, Aristotle long since anticipated Pilate’s cynical “what is truth?”: truth says of what is, that it is; and of what is not, that it is not. [Metaphysics, 1011b, C4 BC.] Simple in concept, but hard to establish on the ground; hence — in key part — the duties to right reason, prudence, fairness etc. Thus, too, we may compose sound civil law informed by that built-in law of our responsibly, rationally free morally governed nature; from such, we may identify what is unsound or false thus to be reformed or replaced even though enacted under the colour and solemn ceremonies of law. The first duties, also, are a framework for understanding and articulating the corpus of built-in law of our morally governed nature, antecedent to civil laws and manifest our roots in the Supreme Law-giver, the inherently good, utterly wise and just creator-God, the necessary (so, eternal), maximally great being at the root of reality.

    Of course, you can sweep it all away, but you will then find that you have swept away any reasonable, responsible appeal on your part, leaving only naked power and manipulation. Which we do see. We are here seeing, yet again, the self-refuting incoherence of evolutionary materialism and where it ends. the question, then is are there enough who are open to a coherent alternative that they can constitute a critical mass in the face of the next fourteen critical months. Months, which I fully expect to be awful.

    I believe such exists, but they lack intellectual ammo, hence the need for the sort of discussion above. We are not locked up to today’s heirs of the Stoics and Epicureans of Athens, c 50 AD with a bankrupt system that had to build and maintain monuments to their ignorance on the pivot of all knowledge, the root of reality. Today, they choose instead to shatter and spurn monuments that expose their meanness of spirit and bankruptcy. Telling.

    The One, in whom we live and move and have our being.

    The fatal foundational crack is exposed, they may mock and dismiss, but in the end they will not prevail.

    And, being exposed for what they are, is a first step in the needed reformation.

    A mother of seven, a scholar in her own right and a judicious judge too, may well be the instrument of judgement.

    KF

  5. 5
    kairosfocus says:

    OA94: yes, the Judiciary cannot legitimately be a super-legislature making super laws passed off as “living document” constitutional law. That is what is being exposed. KF

  6. 6
    JVL says:

    Barry Arrington: Legitimate and illegitimate are literally meaningless concepts to a person who rejects the existence of objective morally binding norms of jurisprudence. For such, “legitimate” is another word for “what one can get away with by cobbling together five votes.”

    I am reminded of Newt Gingrich who ruthlessly pursued Bill Clinton for a moral failing and then, it turned out, that he himself had exhibited the same failing.

    And what about the current POTUS? Isn’t Trump a perfect example of votes Trumping morals?

  7. 7
    kairosfocus says:

    JVL, this isn’t about Mr Gingrich (an historian and politician) or Mr Trump (a contractor, hotelier, celebrity and politician) but about the premises of jurisprudence thus law and the degeneration of courts into unaccountable legislatures. BA is testifying from direct knowledge as an Attorney-at-Law. KF

  8. 8
    Viola Lee says:

    Barry asks, “Legitimate and illegitimate are literally meaningless concepts to a person who rejects the existence of objective morally binding norms of jurisprudence.”

    Does this mean you think all judges must be religious believers?

  9. 9
    kairosfocus says:

    VL, no. Judges need to be judicious, not usurpers of legislative power. It is possible to be secularistic or to hold deistic or other views that are consistent with recognising and accepting something as simple as that those who pass laws should be accountable via the ballot box; once we have passed the point c 1650 – 1750 when modern, representational, constitutional democracy became possible; before that the best we could hope for was lawful oligarchy willingly subject to justice. When we compound usurpation with ideologies that undermine acknowledgement of first duties of responsible reason (which are undeniable, as pointed out) then the combination opens the door to nihilism. If we compound that with habits of thought and life that warp or dull the conscience, that becomes even more dangerous, but at that point we are dealing with blatant injudicious attitudes and behaviour. This is similar to the fit and proper person standard for officers of a financial concern. It shouldn’t be hard to see that judges must be judicious and that there is no right to become a judge; someone who can fine you into bankruptcy or send you away for a good chunk of your life or have you marched up a platform to put a rope around your neck, while you are made to stand on a trapdoor, then have it sprung open underfoot. KF

  10. 10
    kairosfocus says:

    PS: Notice one of my key underlying references, the Bible-thumping fundy (NOT!) Cicero, c. 50 BC:

    —Marcus [in de Legibus, introductory remarks,. C1 BC, being Cicero himself]: . . . the subject of our present discussion . . . comprehends the universal principles of equity and law. In such a discussion therefore on the great moral law of nature, the practice of the civil law can occupy but an insignificant and subordinate station. For according to our idea, we shall have to explain the true nature of moral justice, which is congenial and correspondent [36]with the true nature of man.

    [–> Note, how justice and our built in nature as a morally governed class of creatures are highlighted; thus framing the natural law frame: recognising built-in law that we do not create nor can we repeal, which then frames a sound understanding of justice. Without such an anchor, law inevitably reduces to the sort of ruthless, nihilistic might- and- manipulation- make- “right,”- “truth,”- “knowledge,”- “law”- and- “justice”- etc power struggle and chaos Plato warned against in The Laws Bk X.]

    We shall have to examine those principles of legislation by which all political states should be governed. And last of all, shall we have to speak of those laws and customs which are framed for the use and convenience of particular peoples, which regulate the civic and municipal affairs of the citizens, and which are known by the title of civil laws.

    Quintus [his real-life brother]. —You take a noble view of the subject, my brother, and go to the fountain–head of moral truth, in order to throw light on the whole science of jurisprudence: while those who confine their legal studies to the civil law too often grow less familiar with the arts of justice than with those of litigation.

    Marcus. —Your observation, my Quintus, is not quite correct. It is not so much the science of law that produces litigation, as the ignorance of it, (potius ignoratio juris litigiosa est quam scientia) . . . . With respect to the true principle of justice, many learned men have maintained that it springs from Law. I hardly know if their opinion be not correct, at least, according to their own definition; for “Law (say they) is the highest reason, implanted in nature, which prescribes those things which ought to be done, and forbids the contrary.” This, they think, is apparent from the converse of the proposition; because this same reason, when it [37]is confirmed and established in men’s minds, is the law of all their actions.

    They therefore conceive that the voice of conscience is a law, that moral prudence is a law, whose operation is to urge us to good actions, and restrain us from evil ones. They think, too, that the Greek name for law (NOMOS), which is derived from NEMO, to distribute, implies the very nature of the thing, that is, to give every man his due. [–> this implies a definition of justice as the due balance of rights, freedoms and responsibilities] For my part, I imagine that the moral essence of law is better expressed by its Latin name, (lex), which conveys the idea of selection or discrimination. According to the Greeks, therefore, the name of law implies an equitable distribution of goods: according to the Romans, an equitable discrimination between good and evil.

    The true definition of law should, however, include both these characteristics. And this being granted as an almost self–evident proposition, the origin of justice is to be sought in the divine law of eternal and immutable morality. This indeed is the true energy of nature, the very soul and essence of wisdom, the test of virtue and vice.

  11. 11
    JVL says:

    Kairosfocus: JVL, this isn’t about Mr Gingrich (an historian and politician) or Mr Trump (a contractor, hotelier, celebrity and politician) but about the premises of jurisprudence thus law and the degeneration of courts into unaccountable legislatures.

    Yes, BUT, do you think that the ideals you hold were upheld in the way President Clinton was held in light of what turned out to be true of his chief accuser?

    In other words: how do we pick the ideal goal or unassailable criteria?

  12. 12
    kairosfocus says:

    JVL, I think both Mr Clinton and Mr Gingrich were most improper in their behaviour and you know full well that in describing Mr Trump as I did yet again, I am by no means praising him. That you keep on raising such as though the matter has not been adequately addressed raises two key issues. First, you are clearly using the fallacy of invidious association as a distractor from a subject that is literally make/break for our civilisation, and second you show that you have no cogent answer on the merit but do not wish to allow such a pivotal matter to remain focal. That is irresponsible. I have already laid out the issue on judges and the law, and point out that Mrs Barrett demonstrates that such people do exist but many do not want such precisely because they want to further the corruption of courts into unaccountable legislatures. That speaks telling, sad volumes. KF

  13. 13
    Mac McTavish says:

    It is my understanding that the constitution lays out three branches of government. The judiciary is one of these. If the legislative branch is not clear, it leaves the judicial branch to decide. So, don’t blame the judges. Blame the lawyers who wrote the laws.

  14. 14
    Barry Arrington says:

    Barry: “Legitimate and illegitimate are literally meaningless concepts to a person who rejects the existence of objective morally binding norms of jurisprudence.”

    Viola Lee responds: “Does this mean you think all judges must be religious believers?”

    It means that every judge must have a fundamental commitment to a moral standard. Robert Bork put it this way:

    In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should. . . .

    The democratic integrity of law, however, depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.

    Robert H. Bork, The Tempting of America (The Free Press, 1990), 1-2.

    Every judge takes an oath to uphold the constitution. That oath’s force is moral. There are few, if any, institutional checks. Can non-religious judges be moral? Of course. Can they ground their morality ontologically in anything other than their subjective preferences? Obviously not.

  15. 15
    Viola Lee says:

    Thanks, Barry. The quote from Bork is interesting. However, I don’t know whether I understand all of your post. You say that a judge must have a fundamental commitment to a moral standard. But Bork’s seems to be saying that even if a judge has a commitment to a moral standard, he might in some cases not follow his strongly held view of justice, for instance, in order to abide by the American form of government. That is, he might have a conflict between two competing moral standards. Bork is saying that in this case, the standard to follow legal principles should (or might) override other moral standards. Am I reading this right?

    Also, can a judge have a fundamental commitment to a moral standard without being religious? Did the rest of your post answer that question?

    Oops. I just saw the last paragraph in your post. That answers my second question. Also, I certainly understand and support the moral force of a judge’s oath to uphold the constitution. I think Bork’s quote is saying even if a judge has a strong moral conviction that something might not be in keeping with the constitution, the oath to uphold the Constitution should take precedence. Am I understanding that correctly?

  16. 16
    kairosfocus says:

    MMT, no. The issue as noted from response to professor Leiter in the OP is the corruption of courts into voter-unaccountable legislatures, and especially turning the Supreme Court into a life-tenure, nine-member super legislature making super-laws that inter-alia rewrite the Constitution without reference to its specified amendment process. This is a reversion to oligarchy, which readily becomes ideological, lawless, nihilistic oligarchy. For cause, it is a core premise of constitutional democratic states that laws should be made by elected, accountable representatives and/or by the people directly (through the referendum or ballot initiative). This was a hard-won advance, and it is not to be surrendered. Further to this, we need to restore the vision that there is a core law coeval with our morally governed nature that is antecedent to civil law, a good test of which is, if one can recognise the natural law reasoning and universality of the 2nd Para US DoI 1776, and “articles” 39 and 40 of Magna Carta (the enumeration is due IIRC to Blackstone). In this light, we have first duties of responsible reason that guide responsible canons and statutes of interpretation; so that claims of ambiguity, gaps, etc do not become cracks to further wedge in turning judges into legislators under eisegesis pretending to be living document interpretation. All of this takes utterly urgent force given the moans of 63 million ghosts from the American part of the global holocaust of 800+ millions of our living posterity in the womb in blatant violation of the first right of all, life. It is further urgent as there is clear intent to pack the Supreme Court with ideologues who will predictably in short order disassemble the 1st, 2nd, 4th and 10th Amendments from the Bill of Rights, as well as to undo the Connecticut compromise. KF

  17. 17
    Viola Lee says:

    KF, would you be for term limits for Supreme Court justices, or perhaps a periodic place o the ballot to be retained or not?

  18. 18
    kairosfocus says:

    VL, recall, that every officer, every relevant official in the US swears loyalty to the Constitution of the US. Complete, with a declaration that such is done without the notorious mental reservation trick. That Constitution pivots on natural law (such as is argued in US DoI, esp para. 2), which allows us to understand great antecedent principles of law that lend coherence to the system. For example in opening words of the Institutes . . . the built in textbook of law . . . in Justinian’s Corpus Juris Civilis, we find “Justice is the constant and perpetual desire to give to each one that to which he is entitled . . . . The following are the precepts of the Law: to live honestly, not to injure another, and to give to each one that which belongs to him.” In this context, there is in fact a strong framework of coherent moral principles that guide civil law, law of nations and reforms, but nowhere do we find that judges in a constitutional republic are life-term super legislators unaccountable to the common voter. This is the crux of the matter and it is why willing submission and loyalty to the Constitutional framework is of critical importance. Where, should reforms be needed, there is a defined amendment process . . . we long since learned from the folly of the laws of the Medes and Persians, which were not open to amendment once issued. Peaceful amendment is the better alternative to usurpation and imposition, for many good reasons. KF

  19. 19
    kairosfocus says:

    VL, over years, I have suggested 7-year rotating terms and an upper age limit. But that does not by itself answer to the point that those who issue law should answer to the voters. This is compounded by several linked problems, such as a circle of one profession, lawyers, thus forming a nobility if granted legislative powers. KF

  20. 20
    Viola Lee says:

    By rotating terms do you mean a term limit, or just voted on to be retained or not every seven years? And any thoughts on the upper age limit?

  21. 21
    Barry Arrington says:

    Viola Lee,
    Here is the crux of the matter. Suppose a judge on the supreme court believes very strongly that a rate of taxation above 30% amounts to theft by government and is therefore gravely immoral. A case comes before him in which a tax statute that imposes a rate of 40% is challenged. Here is the choice of which Bork speaks. The Constitution is silent on the issue of tax rates. But if the judge can cobble together four more votes, he can override Congress and impose his personal view about tax rates on the rest of us. The judge’s decision is very straightforward. He can say the constitution says something it clearly does not say (no tax rate over 30%) and strike down the statute (and satisfy his personal view). Or he can interpret the constitution as written and uphold the statute. This is the temptation of which Bork speaks. Does the judge’s very strongly held view of public policy amount to a constitutional imperative? No it does not. And the only legitimate choice is to set aside his strongly held personal view and defer to the constitution. But if he and four of his buddies can strike down the law, why shouldn’t they? They will get away with it. After all, there is no effective check on their power to hold that the constitution says taxes over 30% are unconstitutional (even though it clearly says no such thing). Judges are the guardians of the constitution. But, as the Roman poet Juvenal wrote, “Quis custodiet ipsos custodes?” (Who guards the guardians?) The answer is no one guards the guardians. And the only check on the judge’s power is his moral commitment to the democratic integrity of law. If he has no such commitment, he will impose his personal view on us under the guise of interpreting the constitution. This has happened many times.

    ” I think Bork’s quote is saying even if a judge has a strong moral conviction that something might not be in keeping with the constitution, the oath to uphold the Constitution should take precedence. Am I understanding that correctly?”
    No. If he believes a law is not in keeping with the constitution, he should strike it down.

  22. 22
    kairosfocus says:

    VL, to preserve continuity, similar to the Senate, terms should overlap. One seven year run and out at that level, with maximum age also specified; easy way, no SC nominee shall be older than 63 years of age at nomination. But all of this is secondary. The key point is, law has been textual for over 3,000 years and accessible through print for 500 – 600; prior to that, tables of law were sometimes carved in stone or the equivalent and publicly posted. In that context, the OP documents the core law coeval with our rational, responsible human nature, and further documents principles of sound interpretation, which draw out that judges should interpret and apply law in a duly balanced just manner, not seek to become unaccountable, often life term legislators from the bench. Professor Leiter and colleagues are dangerously, potentially ruinously wrong. Also, as there is Constitutional supremacy (for many good reasons, starting with being constitutive of the USA as voted by the people) laws and decisions in court contrary to it are null and invalid, so there is a just power to so rule for good cause; the power to so rule rests with the merits not the force of the personalities sitting on the bench; again, this pivots on our being rational responsible, significantly free creatures. Notice, in this context, the bill of rights amendments passed with it, are particularly important as they provide yardstick terms to measure the due balance of rights, freedoms and responsibilities, i.e. justice. KF

  23. 23
    kairosfocus says:

    F/N: On how the atmosphere was poisoned https://www.youtube.com/watch?v=bhyYaFvELaU Culture-form Marxist Critical X-theories at work creating toxic, now increasingly widespread narrative. What we are now seeing did not come out of nowhere. KF

  24. 24
    JVL says:

    This may be of interest to some (I haven’t listened to it yet):

    Is Critical Race Theory compatible with Christianity? Neil Shenvi & Rasool Berry (an episode of the Unbelievable? podcast hosted by Justin Brierly on Premier Christian Radio in the UK).

    ‘Critical Race Theory’ is a way of understanding racism through the dynamics of oppressed and oppressor groups. Neil Shenvi believes its worldview is at odds with the Gospel and is concerned at its embrace in evangelical circles. Rasool Berry, teaching pastor at The Bridge Church NYC believes many Christians are overreacting to CRT. While not adopting it wholesale, he believes CRT can help Christians in the pursuit of reconciliation and justice.

    https://www.premierchristianradio.com/Shows/Saturday/Unbelievable/Episodes/Unbelievable-Is-Critical-Race-Theory-compatible-with-Christianity-Neil-Shenvi-Rasool-Berry

  25. 25
    ET says:

    Christians should be anti-racists.

  26. 26
    kairosfocus says:

    F/N: Notice, how no one has been able to justify the corruption of the US Supreme Court into a Super-Legislature?

    The closest is the inevitability argument from prof Leiter (as an example) in the OP, which turns on rejecting sound canons of legitimate interpretation, reasonable precedent and application i/l/o underlying core principles of law that are built-in, coeval with our nature as rational, responsible, significantly free creatures; starting with inescapable first duties to truth, right reason, prudence, justice, fairness etc.

    Including, that justice duly balances rights, freedoms and responsibilities; rights, being inevitably moral demands for respect and support of our life, honestly acquired property, innocent reputation etc. Thus, too, if one is to justly claim a right, one cannot demand that the other upholds one in the wrong, tainting sound conscience so to be legitimate, a right claim requires being demonstrably in the right.

    So, for instance if claimed property is dishonestly acquired, one cannot demand to be upheld in theft. And likewise, one has no right to project or suggest the slander that entrepreneurship, investment and capital are automatically theft. This is a key point where Marxist ideologies go into dangerously wrong territory and end up exploiting envy; this specifically includes the culture form Marxist Critical X-Theory called Critical Race Theory and it extends directly to the snide toxic smear job of US history by a certain professor Zinn and to the similar assertions and accusatory ideological reframing known as the 1619 Project. The sort of rioting, arson, looting, shop lifting and mayhem we have seen for many months is a telling illustration of this point.

    Where,as well, if one adheres to any one of a fairly large number of worldviews and/or ideologies that reject such freedom, one is actually implicitly undermining his/her own rationality. That should be a sign that things have gone off the rails. Evolutionary materialistic scientism and linked views, I am looking straight at you.

    It is high time to restore soundness to jurisprudence.

    KF

  27. 27
    kairosfocus says:

    F/N: As a step towards soundness, a 2017 Harvard Law Review article by Baude and Sachs (with comments from inter alia a certain Amy Coney Barrett) may be of some assistance, pointing out the role of law itself in interpretation of legal texts:

    https://harvardlawreview.org/wp-content/uploads/2017/02/1079-1147_Online.pdf

    >>Both the standard picture and the skeptical view are missing some-
    thing: law. Interpretation isn’t just a matter of language; it’s also gov-
    erned by law. This “law of interpretation” determines what a particu-
    lar instrument “means” in our legal system. Whether the written text
    actually has that meaning in any natural language, whether English,
    Latin, or legalese, is largely beside the point. The law says it does, and
    that’s what matters.
    As an example, think of the famous case of the two ships Peerless. 9
    Two parties agreed to send cotton on the Peerless, unaware that there
    were two such ships sailing months apart (and that each party had a
    different ship in mind). As Professor Arthur Corbin recognized, it’s
    useless to ask what the jointly authored contract really means. The
    parties sought to convey different ideas, they invoked different public
    meanings, they had different purposes, and so on. Even if a judge
    “knew all the circumstances that were known to both the speaker and
    the hearer, he could still give it no ‘correct’ meaning of his own.” 10
    There’s just no one meaning that’s the fact of the matter.
    Yet we still have to decide the case. We don’t keep fruitlessly hunt-
    ing for a hidden meaning; but neither do we tell judges to fill the gap
    with whatever they think best. Instead, we use law to displace our or-
    dinary inquiries about meaning. The Second Restatement of Contracts
    handles a Peerless case based on the parties’ relative degrees of fault;
    if one had reason to know the other’s meaning, we hold that extra
    knowledge against them. 11 Other contract theories might handle it dif-
    ferently. Either way, we don’t need to convince ourselves that the con-
    tract really means one ship or the other; the law can just treat the par-
    ties as if it did.
    The crucial question for legal interpreters isn’t “what do these
    words mean,” but something broader: What law did this instrument
    make? How does it fit into the rest of the corpus juris? What do “the
    legal sources and authorities, taken all together, establish”? 12 Ques-
    tions like these presuppose some particular system of law, and their
    answers depend on the other legal rules in place. Language will of
    course be an input to the process, but law begins and ends the inquiry.
    So, contrary to the standard picture, an instrument’s legal effect
    doesn’t just follow from the meaning of its language, according to your
    favorite set of linguistic conventions. What to read, and what linguis-
    tic conventions to use, is itself a question of law.
    Meanwhile, contrary to the skeptics, extracting legal content from a
    written instrument needn’t involve much direct normative judgment.
    In fact, it usually doesn’t. Many of the normative choices at issue
    have already been made, as reflected in preexisting legal rules . . . >>

    Of course, there is a lot of onward discussion and debate across nearly 70 pages. But the point is in the end fairly simple: interpretation helps us understand and address or apply a particular point in light of its immediate and wider context, it should not supplant it. If the parties to the Peerless case should have exercised better care, that too is a factor and one who was negligent is not in the same condition in justice as one who has been duly diligent but has erred through no fault of their own; where due diligence should be amenable to the man in the Clapham bus stop, the ordinary Joe of ordinary knowledge and intelligence. The resolution of the dispute, in short comes back to first duties, duly articulated.

    Where, obviously, artful twisting in service to wrong is just that, wrong.

    Which is precisely why the US Supreme Court must be reformed from its degraded status as a super legislature.

    A difficult challenge, given interests, agendas and balance of power at stake. But, going over the cliff by playing Lucy pulling the football yet again will predictably trigger fatal disaffection.

    It is make/break point, kairos.

    KF

  28. 28
    john_a_designer says:

    Any form of democratic government, whether it be some kind of direct democracy or a “representational democracy,” derives its power from the bottom up. For example, the first three words of U.S. Constitution are, “We the People…” It was the people, which included people who had fought in the war of independence (farmers, merchants, craftsmen etc. as well as lawyers and scholars) who ratified the constitution via their state conventions. According to Article VII this required not just a majority but a super majority.

    We also see this bottom up approach in the way the Constitution was organized and drafted. Article I, which is both the longest and most detailed of the original seven articles, lays out the roles and responsibilities of the U.S. Congress which consists of two houses: the House of Representatives and the Senate. “The House of Representatives,” according to Article I, Section 2, “shall be composed of Members chosen every second Year by the People of the several States.” Notice, that the House of Representatives is the only part of the U.S. government that was originally elected by a direct vote of the people. The Senate, OTOH, was originally elected or selected by state legislatures. Only much later (1913, Amendment XVII) were they elected by popular vote.

    The Congress is the only body empowered by the constitution to legislate (to propose, draft and pass new laws.) This is outlined in very explicitly in much detail in section VIII of Article I.

    Now contrast this very bottom up approach with Article III where the Constitution outlines the powers of the Supreme Court. Where in the constitution is SCOTUS granted the power to legislate? Certainly not in Article III and certainly not anyplace else. What you have then is SCOTUS usurping a power it was neither defined nor granted by the U.S. Constitution. The original intent of the framers was that new legislation was to be created bottom up starting with “The People.” The original purpose of the Supreme Court was to settle disputes concerning existing law, not create new laws. When the SC does create new laws, which it has not so tacitly done in some so-called landmark decisions in the past 60 years, it undermines the very nature of the U.S. Constitutional democracy which, again, was designed to be bottom up. A top down approach is neither constitutional nor democratic. At best, it’s elitists: at worst it’s oligarchical. I don’t think it was the framers intent to create an oligarchy.

  29. 29
    kairosfocus says:

    JaD, the trick is, that as Leiter says, the proposition is put that it is inescapable that judges make law as language and drafters are inevitably imperfect. Invention and twisting to fit agenda are conflated with responsible interpretation, sound application and restrained, justified a fortiori reasoning. Put on pressure, open a crack then burst through in a flood. Lost in the rush, the point that a key part of liberty is that those who make laws must not be life tenure effectively unaccountable rulers, but elected, regularly accountable members of the community of equals. Equal, in creation, in moral government co-eval with that common humanity, but chosen because of solid character and capability. And so, boom, the established elite class is a new oligarchy. KF

  30. 30
    kairosfocus says:

    F/N: Mrs Amy Coney Barrett was voted 52-48 53 – 46, and was sworn in as a new US Supreme Court Justice on the evening of October 26, 2020. Issues of threatened court packing have risen to the fore, along with claims that she is somehow “illegitimate.” Those making the claim should consider that the Justice who recently died in office could easily have retired c 2015 but chose not to do so. Similarly, the packing in of a slate of ideological judges to expand the court will directly lead to contentions over Amdts 1, 2, 4 and 10 as well as the Electoral College and renewed, deeper controversy regarding the ongoing holocaust of 63+ million unborn children under colour of law (with a disproportionate percentage being black). The global geostrategic consequences of such deepened polarisation given what has already been playing out on the ground are also issues to be considered very carefully indeed. The USA is at existential crisis. KF

  31. 31

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