Saturday, November 21, 2009

First Notes from The Old Sage: the Whole of the Law

Another post from The Old Sage as we await his official arrival ...



There is an old saying, "A man who is capable of deceiving only others is not nearly as dangerous as a man who is capable of deceiving himself". Truer words were never spoken.

I thought of this when I heard Supreme Court Justice Ruth Bader-Ginsburg endorse the use of foreign law by American judges to interpret the Constitution that they were sworn to uphold- that would be the "American" Constitution" of course. Speaking about this recently at Ohio State University's Moritz college of Law, she said, "I frankly don't understand all the brouhaha lately from congress, and even from some of my colleagues about referring to foreign law when handing down court rulings".

You know what? For once, I believe her. She and her fellow conspirators really "don't understand". They don't get it; they don't know the correct legal interpretation of their jobs well enough to understand how to do their jobs the way they are supposed to. Notice that I call it "correct" for good reason. It implies that other positions are incorrect, most especially the so-called "living document" legal philosophy that the courts have been trying to shove down our throats in respect to interpreting the Constitution of late. To accept these categorizations is to say that we just have perspectives on Constitutional law, and no one can say which one is correct (except for them). We have descended to where the Constitution can be interpreted loosely by a sort of "legal relativism".

She continued in her speech at Moritz College by adding, "That the failure to engage in foreign decisions had resulted in diminished influence for the American courts, and that the Canadian Supreme Court is probably cited more widely abroad than the US supreme Court." The reason for that is, "you will not be listened to if you don't listen to others".

This is quite a "wow" statement, and it addresses something that I have long feared to be true. The problem with our judges is that they are not content to be just judges. They want to be something more. A judge is much like a referee in a baseball game. His job is to determine whether an existing rule has been violated. It's not his call to make or alter the rulebook (Constitution) no matter how he personally feels about it.

Yet today we have judges who are king wannabes. They are not satisfied to just referee the game; that’s too small a role for them. They want to be activists - the movers and shakers of social parameters, and they want the ego satisfaction that comes with this status. Recently confirmed Justice Sonya Sotomayor was quoted as saying, "The courts should be the creators of social policy". This does not sound like the role of a referee to me.

So why would Ginsburg care if the Canadian Supreme Court is cited more than ours? Could it be that she wants the respect of her peers around the world as fellow members of a global judicial class more than she wants to "just do her damn job" as a Supreme Court justice for the people of the United States as the appointment dictates? Or is it now more important for American justices to conform to a world standard? Most Americans that I have posed this question to care not a pinch whether foreigners listen to the decisions of American courts or not. Foreigners are not governed by American law, and thus our judges’ rulings are irrelevant to them. The reverse should also be true. Ginsburg, like Sotomayor wants respect, and prestige. She wants to be a trendsetter in world policy, America be damned!

"Living document" justices are comfortable in the non-performance of their jobs by the rationalizations that they use to justify them. Ginsburg is one of those whose criticism of the Constitution includes the view that the Constitution is "stuck in time". She is wrong. The Constitution is not stuck in time, but rather it is stuck in law. Law can be changed by legal measures - the amendment process - but until that happens it is supposed to be "stuck". The alternative to being stuck in law is to be subject to the whims of the latest tyrant to hold power. In other words, this thinking is no different from the rule of kings where a George III could "tax without representation". G.K. Chesterton said it well, "There are only two ways of governing: by a rule, or by a ruler." It thus determines whether we live by a rule of law, or a rule of lawyers.

This is why some of us, me included, have likened our present Supreme court to a "de facto oligarchy". An oligarchy makes decisions guided by nothing more than the dictates of their own consciences. Put as much lipstick as you want on this pig, but at the end of the day it still all boils down to might makes right. When justices depart from constitutional protocol, they cannot be removed from their office. This is one of the certifiable weaknesses of the document. Thus, the only thing constraining them then is the dictates of their own consciences, just as it with an oligarchy.

The affairs of the world are governed by one of only two existing designs of anarchy; overt, and covert. There are no others. That is how God made it. Both designs can bring order to chaos. Overt anarchy favors the strong, covert favors the weak. They are much the same in their intent; it is their application that sets them apart. Covert was created by the weak to bring them to a level of parity with the strong because they could not rise to the role of dominance otherwise. Nature favors the strong. One need only observe with intention the trees of any local woods to understand this truth. That is why I have far more respect for someone who overtly defies the law (think Thoreau and civil disobedience) and simply refuses to comply. He is not deceiving either himself, or others. He is saying that the law is wrong, that it violates a higher law, and it is thereby the duty of all honest citizens to defy it. The distinction to be seen here is between an open declaration of war, and the use of deceit, subterfuge, and subversion. Covert anarchy is just such a design as this. The weak cannot openly declare war against the strong as they would be destroyed. Therefore, in acknowledgement of this ineffable truth, they have chosen to resort to underhanded tactics to achieve their end. Supreme Court justices can wrap their "living will" legal junk in a fistful of pseudo-intellectual arguments, but in the end they have done nothing more than to transfer the rule of law to the rule of lawyers (them). In so doing, they have not only violated the rule of man, but the rule of God as well.

This prompts a question: If Supreme Court Justices can rule contrary to the letter and spirit of the supreme law of the land on the basis that the Constitution is not "stuck in time", why can lower courts not apply the same reasoning to what is referred to as "settled law" (areas where the Supreme Court has interpreted the Constitution definitively)? How can law be "settled" without being "stuck"? Why can a lower court not say, “Well, the Supreme Court ruled that way five years ago, but that law has a different meaning, and application today”? If the men in black won't be constrained by the Constitution, why should others be constrained by their unconstitutional decisions?

It is obvious that the "living law" philosophy is not for all of us. It is not for the citizen; for him it is "stuck in time". It is not for the cop on the beat; for him it is to "do or die" without the luxury of "reason why". It is not even for the president, at least not this one, for the laws he signs on to are subject to Supreme Court judgments. And judgments based on what? Not the Constitution obviously, but rather again on the judgments of the justices themselves.

So, my question is: Why should we respect the rulings of usurpers, and tyrants? I can see the ghosts of Patrick Henry, and Thomas Jefferson rising from their graves on this point. If the court will not view the Constitution as being "stuck in law", why should we view the law as being "stuck in courts"? Are the commands of these Corvid oligarchs to be accepted as the only unchanging elements in an ever changing universe of law? Their tacit response to this is to say that, "ignoring court rulings would lead to a breakdown in the rule of law" ... my point exactly.

Activist judges undermine the law by demonstrating their contempt for it. They beg the question of what adherence to the rule of law really means. Should we defer to court decisions made by those who view themselves as above the law? Or should we use our own judgment - as these justices are doing - as to what the real meaning of the Constitution is. This is what is bred by making "living will" document legal rationalizations of the type that we are seeing coming from the courts of late.

There are no such things as "constructionist", and "pragmatist" as designations for justices. There are only good justices, and bad justices. Good ones do their "damn jobs", and follow the Constitution. Bad ones lawyer the law by rationalizing it.

Ginsburg, and Sotomayor should just be honest by saying that to "do what thou wilt shall be the whole of the law" and leave it at that.

1 comment:

  1. She and her fellow conspirators really "don't understand". They don't get it; they don't know the correct legal interpretation of their jobs well enough to understand how to do their jobs the way they are supposed to.

    Oh she understands, all right. So do her fellow conspirators. Don't deceive yourself on that front.

    She knows full well what she's doing. The problem is that she cares more about her activist cause than she does about the Constitution and the freedoms it guarantees.