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Judge Amy Coney Barrett begins US Supreme Court nomination hearings

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Judge Barrett has issued the text of her remarks ahead of the hearings.

She is President Trump’s third nominee and the hearings are liable to be contentious, one hopes the sort of accusations raised against Mr Kavanaugh will not occur.

It is to be noted that election year nominations to the Supreme Court have happened a significant number of times since the 1790’s. Over the past century and more, several times, nominees proposed by a president of one party with a Senate dominated by the other have failed, while same-party nominations have typically gone through. The US Constitution simply stipulates Presidential nomination and Senate “advice and consent.”

In past decades, such were not contentious, but the Court has deteriorated into being a life-tenure, super legislature.

It seems that that needs to be reformed and increasing the number of such legislators (court packing) is not a solution. Legislating from the life tenure bench is part of the problem, not a solution. The restoration of a recognition that we are inherently morally governed through built in law involving justice, i.e. natural law, seems to be a start point for judicial reform. There is a broad need to restore a more balanced order and some sort of term of office limit process may help. Say, one may ponder: limit at age seventy and/or seven years, with a phase in period that allows a gradual overlap.

For sure, a process that turns nomination into a media lynching by accusations, leaks etc only serves to feed fatal disaffection.

It is time for fresh, sound thinking. END

30 Replies to “Judge Amy Coney Barrett begins US Supreme Court nomination hearings

  1. 1
    kairosfocus says:

    Judge Amy Coney Barrett begins US Supreme Court nomination hearings

  2. 2
    polistra says:

    Don’t worry, she’ll end up guaranteeing abortion just like the predecessor. The Supremes have never done anything less than perfectly evil since 1803. The only difference is that this new demon is easier on the eyes than the previous grotesquely horrible demon.

  3. 3
    Mac McTavish says:

    To be fair, using the words in the constitution to interpret the intent of the founding fathers is not an easy task. The versions of the amendments ratified by each state often have different punctuations, which can muddy the interpretation.

  4. 4
  5. 5

    Does she ever actually get to speak at this “hearing” besides her opening statement?

  6. 6
    kairosfocus says:

    WJM, there will be questions. KF

  7. 7
    kairosfocus says:

    MMT,

    I pause on your complaints regarding text. Obviously, at that time, given printing technology, variants were all but unavoidable. However, the actual originals as written out are on display in the National Archives of the US (with scans available online). In addition, accurate transcripts are:

    CONST: https://www.archives.gov/founding-docs/constitution-transcript

    BILL OF RIGHTS (= Amdts 1 – 10): https://www.archives.gov/founding-docs/bill-of-rights-transcript

    In short, the authoritative, fair on the face text coming from due chain of custody and/or repository is readily accessible. Further to this the Federalist and Antifederalist papers, other historical sources and a copious continuous academic/legal and historical literature down to today are readily accessible. So, it isn’t a matter of typos in copies circulated in the 1780’s however interesting such may be for textual criticism.

    The issue is deeper.

    It is not even original text and objectively credible meaning. That, too, falls into the trap of legal positivism. No, the pivot is that the US Constitution and Bill of Rights exist in the historic frame of recognised moral government of responsible, rational creatures through intelligible first principles of justice and sound community order. Precisely as was envisioned in the US DoI and wider context. Such built-in law tracing to first duties and principles that have long been recognised stabilises law by bringing us to recognise our limits and responsibilities. Such is why, for example, I have often put on the table 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. Duties, to truth, to right reason, to prudence, to sound conscience, to neighbour, so also to fairness and justice etc. Such built in law is not invented by parliaments or courts, nor can these principles and duties be abolished by such. (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 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. 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. These 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 manifesting our roots in the Supreme Law-giver, the inherently good, utterly wise and just creator-God.

    A classic description of course traces to the last lion of the Roman Republic, Cicero:

    —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.

    It is because we have been led to disregard such roots (starting with the legal profession itself) that we are in the current peril. A peril reflected in the folly of turning a last court of appeal into a life tenure, appointed super-legislature.

    Which is the context for the current lawfare front battle in the US 4G civil war.

    KF

  8. 8
    Seversky says:

    The questions are a formality and the confirmation hearings little more than street theater.

    The right-wing Federalist Society has connived with the White House to put up candidates with what they judge to be impeccable conservative credentials. If McConnell can rally enough Republican votes in the Senate then Barrett will be confirmed and Trump will have packed the Court with right-wing justices who will decide the way he wants because they owe some measure of loyalty to their sponsors. There are already rumblings from the Democratic side that if they win the election they will increase the number of seats and counter-pack the Supreme Court with liberal justices. This risks turning the Court into a political football and it would seriously undermine its credibility by increasing popular disaffection with it.

    The authority of any court ultimately relies on the people trusting that the court will administer justice fairly and impartially. If it is possible to skew it into a partisan body, as Trump clearly is trying to do, then there is a case for a constitutional amendment to reform the structure of the court and prevent such a thing ever happening again.

    The problem for any society is that, where there are irreconcilable differences of opinion on any issue, they must either be referred to some supreme body of arbitration by whose decisions all sides agree to be bound or eventually they will be decided by violence.

    We should have no truck with complaints about legislating from the bench as they almost invariably emanate from those who disagree with the Court’s opinion. If there is sufficient support for the belief that the Court has overstepped the bounds of its authority then there is a legislature available to enact corrective measures.

    We should also be wary of appeals to “natural law”. All to often it appears to be nothing more than a euphemism which makes a unwarranted attempt to elevate the personal beliefs of the proponent to the status of a well-established universal physical law. The best answer to that, in my view, comes from a 17th century Roman Catholic theologian called Pierre Charron who wrote in his work De La Sagesse (1601)

    The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs.

  9. 9
    jerry says:

    The right-wing Federalist Society has connived with the White House to put up candidates with what they judge to be impeccable conservative credentials.

    What is meant by the term, “right-wing?”

    I have never seen a coherent definition of it.

    While you are at it, define conservative too. I consider my self conservative (conserving want is good for society) but haven’t a clue how the term “right-wing” applies since I don’t know what its definition.

  10. 10
    kairosfocus says:

    Seversky,

    You have used intemperate, even slanderous language:

    con·nive (k?-n?v?)
    intr.v. con·nived, con·niv·ing, con·nives
    1. To cooperate secretly in an illegal or wrongful action; collude: The dealers connived with customs officials to bring in narcotics.
    2. To scheme; plot.
    3. To feign ignorance of or fail to take measures against a wrong, thus implying tacit encouragement or consent: The guards were suspected of conniving at the prisoner’s escape.
    [Latin c?n?v?re, conn?v?re, to close the eyes.]
    con·niv?er n.
    con·niv?er·y n.
    American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2016 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved.

    The reality is, that for cause, Ms Barrett has been given outstanding ratings as a US Supreme Court candidate. She is conservative, apparently an originalist. This means, likely to object to some of the more outrageous cases of legislation from the judicial bench of a court now deteriorated into a life-tenure, appointed superlegislature hitherto dominated by the factions that pushed for such rulings. Where, if you do not recognise the extreme danger of oligarchy that in effect makes up rulings under colour of law out of thin air, that in itself speaks volumes.

    One of those rulings is directly responsible for the holocaust of 63+ million unborn children under US jurisdictions.

    We have every right to read back from the projections to the source.

    KF

  11. 11
    Mac McTavish says:

    KF

    So, it isn’t a matter of typos in copies circulated in the 1780’s however interesting such may be for textual criticism.

    Actually, the typos do matter because it is these slightly variant texts that are ratified by each state, not the original text.

  12. 12
    kairosfocus says:

    MMT, no. The mutual intent to pass a common constitution on ratification by nine states is what counts and people of that time were perfectly capable of seeing differences, recognising typos by comparison then accepting what is correct. Recall, the first Bible published in America, by Congressional authorisation, had some notorious typos (some, amusing). This is part of why original INTENT is relevant. Besides, the underlying context is recognition of deeper built in law — the laws of nature and of nature’s God, who endowed with unalienable rights (duly balanced with freedoms and responsibilities) — beyond whatever text was there, as the DoI so clearly acknowledges, there being a collective right to reform and if necessary replace failed government. In fact this was what the Constitution was, a second attempt, as the convention called to fix problems with the confederation of 1778, found it advisable to do a radical overhaul, nearly failed then broke through thanks to the Connecticut compromise to balance large and small states that there is talk of undoing now. What is now happening is ill considered manipulative attempt to overthrow. KF

    PS: A significant aspect of your argument is the now dominant but fatally flawed view that law is whatever those with power decree, in the end; legal positivism. This directly leads to nihilism.

    PPS: It is noteworthy that to try to persuade you implicitly appeal to what you and others have studiously evaded for months, the inescapable first duties of reason and their significance. Which lie at the heart of what law is and what law implies about us and our world.

  13. 13
    kairosfocus says:

    F/N: As this lies at the unacknowledged heart of the debates and lawfare over this nomination hearing, I again clip 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. Duties, to truth, to right reason, to prudence, to sound conscience, to neighbour, so also to fairness and justice etc. Such built in law is not invented by parliaments or courts, nor can these principles and duties be abolished by such. (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 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. 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. These 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 manifesting our roots in the Supreme Law-giver, the inherently good, utterly wise and just creator-God.

    Let me also note from Locke, showing aspects that are often overlooked:

    [Essay on Human Understanding, Intro, Sec 5:] Men have reason to be well satisfied with what God hath thought fit for them, since he hath given them (as St. Peter says [NB: i.e. 2 Pet 1:2 – 4]) pana pros zoen kaieusebeian, whatsoever is necessary for the conveniences of life and information of virtue; and has put within the reach of their discovery, the comfortable provision for this life, and the way that leads to a better. How short soever their knowledge may come of an universal or perfect comprehension of whatsoever is, it yet secures their great concernments [Prov 1: 1 – 7], that they have light enough to lead them to the knowledge of their Maker, and the sight of their own duties [cf Rom 1 – 2, Ac 17, etc, etc]. Men may find matter sufficient to busy their heads, and employ their hands with variety, delight, and satisfaction, if they will not boldly quarrel with their own constitution, and throw away the blessings their hands are filled with, because they are not big enough to grasp everything . . . It will be no excuse to an idle and untoward servant [Matt 24:42 – 51], who would not attend his business by candle light, to plead that he had not broad sunshine. The Candle that is set up in us [Prov 20:27] shines bright enough for all our purposes . . . If we will disbelieve everything, because we cannot certainly know all things, we shall do muchwhat as wisely as he who would not use his legs, but sit still and perish, because he had no wings to fly.

  14. 14
    kairosfocus says:

    F/N: Let us contrast here, due interpretation on laws informed by context, relevance, comparable cases and precedents (a fortiori reasoning) and making up and imposing 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 technical art], will help. We 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 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 the due balance of rights, freedoms and responsibilities of significantly free, morally governed creatures. Hence, the first principles and duties already pointed out. Notice, these 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.

    In said light, let us closely observe 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.

    Here, we can see relevant context, the US Constitution being a reformation effort after the Articles of Confederation 1778 broke down.

    Now, too, let us hear a voice from 1856:

    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.

    Now, this readily becomes complex and technical, and law is notorious for obscure, rare, exacting terms, some still in the Latin or French. For instance to devise applies to passing on real property and to bequeath to personal, in the context of a will. Where in turn:

    real property

    n. 1) all land, structures, firmly attached and integrated equipment (such as light fixtures or a well pump), anything growing on the land, and all “interests” in the property which may be the right to future ownership (remainder), right to occupy for a period of time (tenancy or life estate) the right to drill for oil, the right to get the property back (a reversion) if it is no longer used for its current purpose (such as use for a hospital, school or city hall), use of airspace (condominium) or an easement across another’s property. Real property should be thought of as a group of rights like a bundle of sticks which can be divided. It is distinguished from the other type of property, personal property, which is made up of movable items. 2) one of the principal areas of law like contracts, negligence, probate, family law and criminal law. (See: real estate, personal property, reversion, life estate, condominium, easement)
    Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

    It is in this context that we must now go forward in sound reformation.

    KF

  15. 15
    ET says:

    The Democrats are making up a bunch of stuff and flinging it around in the hope that something sticks. And it’s very telling that the media is silent on their cowardly tactics.

  16. 16
    kairosfocus says:

    Media amplified lawfare and agit prop. The court corrupted already into a life tenure super legislature is at stake and is under siege by a woman with the intellectual horsepower to deliver a breakthrough.

  17. 17
    kairosfocus says:

    F/N: Note Wash Post oped:

    Let’s start telling the truth about what the Supreme Court does

    Opinion by Brian Leiter
    March 19, 2017

    Brian Leiter is a professor at the University of Chicago Law School.

    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 wrong-headed.

    To fix it — 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.

    In the case of the USA, the holocaust of 63+ million of living posterity in the womb, just by itself, is such a long train, and there are others. The 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; speaks. If it succeeds, predictably, the American constitutional framework will be drastically, radically rewritten, through a patently lawless oligarchy.

    The consequences of such 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.

    KF

  18. 18
    kairosfocus says:

    F/N: Sen Ted Cruz, on the Super-Legislature issue, clipping a partial transcript:

    “Democratic Senators view the court as a super legislature, as a policymaking body. That vision of the court is something found nowhere in the Constitution, and it is a curious way to want to run a country,” said Cruz.

    “Democrats and Republicans have a fundamentally different view of what the Supreme Court is supposed to do,” he added. “Who in their right mind would want the United States ruled by five un-elected lawyers wearing black robes? It’s hard to think of a less Democratic notion than un-elected philosopher kings with life-tenure decreeing rules for 330 million Americans.”

  19. 19
    ET says:

    Judge Amy Barrett had a mic dropping moment yesterday. When asked about the notes she was reading from to answer the questions posed to her, she help up a blank note pad. Everything was in her head.

    Yes, she is that intelligent.

  20. 20
    kairosfocus says:

    F/N: Further questioning https://www.upi.com/Top_News/US/2020/10/14/Amy-Coney-Barrett-says-Supreme-Court-cant-enforce-rulings/3321602669656/ it seems there are repeated attempts to get her to overstep prudence or give gaps that can be exploited for making accusatory headlines. She noted, correctly, that Courts rely on other arms of Gov’t to enforce their rulings. Prosecutors and police are not generally directed by the courts, unlike the case of investigatory magistrates in Roman Law jurisdictions such as Italy. There are observations on grandstanding by politicians to the point of sometimes sidelining the judge. There is of course concern over possible smear attempts. It is obvious that, on balance Ms Barrett has more than held her own and indeed the blank notepad moment is iconic of her expertise, situation awareness, balance and intellectual horsepower in a high stress, outright dangerous situation where people are trying to trap and discredit her. KF

  21. 21
    kairosfocus says:

    F/N: Troubling aspects of “Constitutionality”. In much of the reference to the US Constitution, there is a hint of abandonment of its underlying frame of reference, the built in law that governs us through justice, prudence etc. There is a long term need to address this and its implication, that there is a need to grapple with our inescapably morally governed nature. KF

    PS: I again note, as so often (and the studious evasion by inveterate objectors is telling):

    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. Duties, to truth, to right reason, to prudence, to sound conscience, to neighbour, so also to fairness and justice etc. Such built in law is not invented by parliaments or courts, nor can these principles and duties be abolished by such. (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 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. 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. These 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 manifesting our roots in the Supreme Law-giver, the inherently good, utterly wise and just creator-God.

    Where, Epictetus takes up the logic aspect:

    DISCOURSES
    CHAPTER XXV

    How is logic necessary?

    When someone in [Epictetus’] audience said, Convince me that logic is necessary, he answered: Do you wish me to demonstrate this to you?—Yes.—Well, then, must I use a demonstrative argument?—And when the questioner had agreed to that, Epictetus asked him. How, then, will you know if I impose upon you?—As the man had no answer to give, Epictetus said: Do you see how you yourself admit that all this instruction is necessary, if, without it, you cannot so much as know whether it is necessary or not? [Notice, inescapable, thus self evidently true and antecedent to the inferential reasoning that provides deductive proofs and frameworks, including axiomatic systems and propositional calculus etc. Cf J. C. Wright]

    And, here is Blackstone:

    Commentaries on the Laws of England (1765-1769)
    Sir William Blackstone

    INTRODUCTION, SECTION 2
    Of the Nature of Laws in General

    . . . [L]aws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior.

    Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being [–> we are contingent creatures under a Creator who as Maximally Great, necessary being, has aseity]. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself [–> notice, aseity, and the implied folly of a contingent creature presuming that responsible rational freedom gives him utter, arbitrary autonomy of action]; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.

    [–> hence, the significance of seeing from our inescapably being under moral government, that we operate on both sides of the IS-OUGHT gap. So, it must be bridged, which is only feasible in the root of reality, on pain of Hume’s ungrounded ought: reasoning is-is then poof, ought from nowhere. Coherence demands fusion, only feasible in the world-root source. This requires a necessary being root of reality adequate to support ought. After centuries of vexed debate, there remains just one serious candidate: the inherently good (and so, utterly wise and soundly acting) creator God, a necessary and maximally great being. Thus, one who is framework to any world existing, indeed, its source. Further, one who is worthy of loyalty and of the responsible, reasonable service of doing the good that accords with our evident nature.

    This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

    Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. [–> Blackstone, here, errs somewhat in this suggestion, as he does not adequately consider God’s goodness and the moral coherence of his character: God as inherently good will do no evil]

    But as be is also a being of infinite wisdom [–> notice, utterly wise so also inherently good], he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law. [–> In introductory remarks in the built-in textbook, Institutes, for Corpus Juris Civilis, which in turn echoes Aristotle in the Nicomachean Ethics, and of course Paul, Jesus and Moses on the law of neighbour love.]

    But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason [–> notice, the implicit duty to reason aright starting with its first principles], and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness [–> he now draws this out], he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action.[–> which is the implicit premise in love neighbour as self] For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own true and substantial happiness.”

    [–> which by definition cannot but be in a community of like creatures, leading to mutual obligations of neighbour-love; note the direct echo in the US DOI, July 4, 1776. However, the lack of balance is a key weak point. By way of rebalancing, for instance, justice is best understood as the due balance of rights, freedoms and responsibilities in the community of the morally governed. Which, in turn, is credibly rooted in the inherently good, utterly wise Creator..]

    This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.

    This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

    But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness.

    We have some rethinking to do as a civilisation.

  22. 22
    kairosfocus says:

    F/N: 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 first principles of law . . . including, 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 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, 1215. KF

    PS: Let us note, again:

    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.

    Such brings out the universal law aspect of natural law, as opposed to whatever may be common practice of jurisdictions or a treaty (such as the UN Charter). For, insofar as a piece of legal argument successfully soundly lays out our built-in moral government in ways enforceable by legitimate government (as opposed to personal ethics etc), it is generally . . . globally . . . binding. We could term this The Universality of Sound Natural Law principle.

    As an immediate application, the discoveries summarised in the US DoI regarding the rights-pivot of Law and Government (thus, the justice principle) would be properly regarded as legal reasoning pointing to binding universal law. Such law can indeed be disregarded, but only on pain of absurdity and needless chaos. Thus, too, we see the pivotal importance of effective means of reformation through the legitimate expression of the consent of the governed. This points to the significance of regular general elections, referenda and right to petition. Likewise, freedom of conscience, expression, publication and association duly tempered by the fairness import of due balance. That is, for yardstick instance, freedom to express and publish does not confer a right to defame. No one owes the duty of having their innocent reputation hostage to your ill-governed tongue or pen.

    In this sense, sound conscience is a legislator, as Cicero noted.

  23. 23
    BobRyan says:

    Laws written by man tend to be much less complex than laws written by God. In the United States, there are 2 parts that any federal judge is required to use if they value law over usurpation of legislative powers. The first is the Supremacy Clause, which states anything is the US Constitution takes precedence over what is done at the state and local level. The 10th Amendment reaffirms the Supremacy Clause, when it makes clear anything not in the US Constitution is left to the states. US Code is not part of the Constitution. If something a state does is not included in the US Constitution, it is not a federal issue.

  24. 24
    Bob O'H says:

    Laws written by man tend to be much less complex than laws written by God.

    No wonder people have problems with objective morality of God’s laws are that complex.

  25. 25
    Seversky says:

    Bob O’H/24

    No wonder people have problems with objective morality of God’s laws are that complex.

    Maybe they need to be redrafted. Stop all that legislating from the pulpit.

  26. 26
    ET says:

    Bob O’H:

    No wonder people have problems with objective morality of God’s laws are that complex.

    Only the dim people have problems with objective morality.

  27. 27
    kairosfocus says:

    BO’H, Seversky, BR:

    First, human beings are complex and meet complex circumstances, so regulation will inevitably manifest complications. How one proceeds to evaluate more/less complex is of course a matter of metrics and I am not at all convinced that human moral reasoning is “uncontaminated” by the impact of the Divine, starting with sound conscience as a candle within.

    In that light, I had at first thought to just let BR’s comment stand with opportunity to clarify. However, obviously, it was seen as a rhetorical opportunity to pounce; reflecting the point that just about everything here at UD is subject to hostile scrutiny. That then speaks volumes regarding the persistent silence for many months in reply to:

    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. Duties, to truth, to right reason, to prudence, to sound conscience, to neighbour, so also to fairness and justice etc. Such built in law is not invented by parliaments or courts, nor can these principles and duties be abolished by such. (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 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. 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. These 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 manifesting our roots in the Supreme Law-giver, the inherently good, utterly wise and just creator-God.

    Such reasoning is unavoidably complex, but so is core reasoning on just about any other subject where many aspects have to be taken due note of. Consider, say, the axiomatisation of number theory or any reasonably complex contract.

    At the same time, we can make a little observation on the above exchange: those who raised objections cannot escape appeals to said first duties. That is, we have here identified an objective core of morality. Of course, the seven principles and how they work together can become complex. That is inevitable, starting with Pilate’s notorious, what is truth. To which, a decisive first answer is, from Ari, that truth says of what is that it is; and of what is not that it is not. Accurate description of reality, which in a world of finite, fallible, morally struggling too often ill-willed people, then leads to others in the chain: first principles of reasoning, prudence, fairness, justice, need to listen to sound conscience etc. So, each points to the others and we find a tightly integrated whole. Which is complex.

    However, the core of moral obligation turns on principles sufficiently clear that a child can initially grasp them. For instance, that we are all formed of one blood and participate in the grace of life so have a mutuality that leads to the neighbour-love pivotal principle. And here is some direct scripture on that subject:

    Lev 19: 9 “When you reap the harvest of your land, you shall not reap your field right up to its edge, neither shall you gather the gleanings after your harvest. 10 And you shall not strip your vineyard bare, neither shall you gather the fallen grapes of your vineyard. You shall leave them for the poor and for the sojourner: I am the LORD your God.

    11 “You shall not steal; you shall not deal falsely; you shall not lie to one another. 12 You shall not swear by my name falsely, and so profane the name of your God: I am the LORD.

    13 “You shall not oppress your neighbor or rob him. The wages of a hired worker shall not remain with you all night until the morning. 14 You shall not curse the deaf or put a stumbling block before the blind, but you shall fear your God: I am the LORD.

    15 “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor. 16 You shall not go around as a slanderer among your people, and you shall not stand up against the life1 of your neighbor: I am the LORD.

    17 “You shall not hate your brother in your heart, but you shall reason frankly with your neighbor, lest you incur sin because of him. 18 You shall not take vengeance or bear a grudge against the sons of your own people, but you shall love your neighbor as yourself: I am the LORD.

    Yes, that is the context for Golden Rule ethics as taught by the Judaeo-Christian tradition.

    Where, the challenge of impartial judgement is directly relevant to the current hearings and the issue that there is obvious intent to pack the US Supreme Court with several additional, ideologically driven judges to restore dominance by progressivists and to exploit its corruption into a super legislature. In that context, it is significant to note the projections and accusations against a candidate who is eminently qualified but threatens to return to the view that judges are to soundly interpret and apply the law rather than invent by legislating from the bench. Precisely, because lawmakers should be accountable to the voting public so that the principle of reformation by the people advocated in the 1776 US DoI will be effective.

    Should court packing succeed, not only will there be accelerated enabling of the worst holocaust in history but it is obvious that core rights recognitions will be gutted in favour of a progressivist, culture form marxist, critical x-theory agenda. First, second, fourth and tenth amendment provisions, in particular, are on the obvious target list. And at this stage evasions and denials aren’t worth the bits used to store them.

    Yes, the abortion issue has metastasised into the potential ruin of the USA. Blood guilt is the most corrupting influence of all.

    KF

  28. 28
    kairosfocus says:

    F/N: Anti-Christian bigotry in protests against Mrs Barrett: “Amy Coney Barrett is a Christian theocrat” In fact, she is a distinguished jurist and clearly demonstrates sound knowledge of the US Constitutional framework. This is yet another case for the mirror principle, which points to the pernicious influence of the abortion agenda. KF

  29. 29
    kairosfocus says:

    PS: It seems Mrs Barrett has done very well, on the whole, through the hearings. Certainly, she has impressed many.

  30. 30
    kairosfocus says:

    F/N: To refocus, let me again put on the table a [slightly expanded] summary of the core of law:

    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.

    It is in that context that we may ponder Mrs Barrett as an originalist. Which, has recently been challenged on claimed grounds that the post Civil War Amendments constituted a new constitution that in effect marked a second framing, one by implication ignored by Mr Scalia and his once clerk, Mrs Barrett.

    Nonsense, sound reformation and emphatic clarification are not usurpation, supplanting or radical replacement. Yes, the issue of personal liberty and associated rights had to be hammered home by force of arms at cost of 600,000 needlessly lost lives, but tell me what is in those amendments that is not implicit in a certain notably foundational bit of natural law reasoning i/l/o the principles just noted:

    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.

    Do, tell us, just what is there about the universality of what is drawn out as sound, built in law of our morally governed nature that is invented novelty (as opposed to, drawn out discovery and clarification)?

    If something is indeed the natural law on a key matter, it was always there; it is our blindness, limited error-prone rationality and hardness of heart that suppressed it. So, when it is drawn out, we should rather recognise, prize and celebrate. Of course, one man’s reform is another man’s rebuke. However, once it is sound, it becomes duty to acknowledge its place in the canon of core principles of justice and sound order in community and family. Which, is the pivot of sound reformation.

    In that context, we come to another form of reformation, counter-cultural restoration of what was once evident but which through “a long train of abuses and usurpations” has been suppressed, supplanted, disregarded. Here is a classic description of such, from what seems to have been a circular letter to churches c. 61 AD, written by a Missionary and appeals prisoner chained to a guard:

    Eph 4: 17 Now this I say and testify in the Lord, that you must no longer walk as the Gentiles do, in the futility of their minds [–> implication, deeply fallacious reasoning and imprudent life]. 18 They are darkened in their understanding, alienated from the life of God because of the ignorance that is in them, due to their hardness of heart. 19 They have become callous and have given themselves up to sensuality, greedy to practice every kind of impurity.

    20 But that is not the way you learned Christ!— 21 assuming that you have heard about him and were taught in him, as the truth is in Jesus [–> duty to truth], 22 to put off your old self,6 which belongs to your former manner of life and is corrupt through deceitful desires, 23 and to be renewed in the spirit of your minds [–> transformation through enlightenment on truth, soundness, prudence etc], 24 and to put on the new self, created after the likeness of God in true righteousness and holiness. [–> if the very core of rational, responsible freedom is morally governed, transformation of life flows from its restoration through God’s grace, God being the inherently good and utterly wise root of reality.]

    25 Therefore, having put away falsehood, let each one of you speak the truth with his neighbor, for we are members one of another. [–> neighbour love] 26 Be angry and do not sin [–> justice and fairness, not revenge]; do not let the sun go down on your anger [-> not to be driven by rage congealed into hate], 27 and give no opportunity to the devil. 28 Let the thief no longer steal, but rather let him labor, doing honest work with his own hands, so that he may have something to share with anyone in need. [–> neighbour love] 29 Let no corrupting talk come out of your mouths [–> truth, sound reason, prudence], but only such as is good for building up, as fits the occasion, that it may give grace to those who hear. 30 And do not grieve the Holy Spirit of God, by whom you were sealed for the day of redemption. 31 Let all bitterness and wrath and anger and clamor and slander be put away from you, along with all malice. 32 Be kind to one another, tenderhearted, forgiving one another, as God in Christ forgave you. [ESV]

    If our civilisation is to be restored to soundness, such will have to be the pivot.

    And no, such is not Christofascist, theocratic tyranny. That is a hateful slander that will have to be rejected.

    Coming back to judicial soundness, I am reminded of a provision of the Cayman Islands Constitution, by which Judges are instructed to draft in effect petitions to parliament, where they find a significant flaw in law up to and including the Constitution. (Of course, recently, a judge tried to short-circuit this, asserting power to in effect constitute himself a one man Constitutional Convention not accountable to the public, rewriting the Constitution as he willed. That is how far gone jurisprudential thought has fallen in our day of legal positivist will to power.)

    We need to do some serious re-thinking. We are at kairos, needlessly but by our chosen march of folly in the notorious Ac 27 storm, with a ship of state already in seriously damaged condition.

    Can we steer away from the sand bars of Syrtis and find our way to a haven, a Melita (Malta)?

    In coming weeks and months across what is left of 2020 and across 2021, we will learn.

    Learn, through pain and loss, needless loss occasioned by stubbornly blind march of folly.

    For shame!

    KF

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