Monday, July 25, 2011

Judicial Taliban

There are at least some laws that depend for their “authority” not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards.*

The current pack of Judges, state and Federal, are self proclaimed champions and crusaders of political correctness. They reject any basis or foundation in any ethical and moral philosophical systems. They subsist solely within an American Judicial ethos of their own making. In addition these Judicial Taliban insist on granting rights that frankly aren’t for them to bestow. Judicial activism is rampant and largely unfounded.

Examples of activism abound. Recently judges demanded that California arbitrarily reduce its prison population by thousands without regard to how this will affect the public safety. Yet, there’s no law that dictates this reduction.

In another instance in Texas Federal District Judge ordered a High School graduation speech have no mention of prayer or God or some such. 1st Amendment rights aside, what business does a federal judge have adjudicating the very content of speech at something like a High School graduation? That’s simply judicial overreach which goes against a key element of our successful representative democracy, its limited nature.

Do we have a government Center for Politically Correct Language or rather a Federal government with constitutional limits insuring Free Speech? It’s especially odd considering any time an “artist” wants to portray Christ in Piss it’s deemed their right under the Constitution. I just wish he didn’t do it with taxpayer money.

These renegade rulings continue as I write. Federal judges struck down Michigan’s popular constitutional initiative banning “Affirmative” action programs, which represent reverse discrimination. Concerns for popular will aside it seems as if judges are acting like “independent voices of the infinite” that Judge Holmes mocked nearly a century ago.

An issue I hesitate to broach has been thrust upon the public square. Judges have found rights to same sex unions in constitutions which seem pulled out of thin air. These unions may seem equitable and trendy but the will of the people has been expressed numerous times against expanding the meaning of marriage. Is there something the judiciary doesn’t get about role of popular will in democracy?

In a democracy government was meant to be of the people for the people and by the people, whose will is expressed through popular elections and referendum. Judicial fiat should play little part in the public square.

Within this writing New York legislature acted on extending marriage contract to same-sex individuals. I don’t agree with this policy but nonetheless this was enacted through the popular process not judicial fiat.

The reference for this activism is the 14th Amendment to the Constitution. 14th Amendment was initially enacted to insure former slaves would not be deprived of their civil rights. After the Civil War the white Southerner was in the process of reducing the emancipated slave to a status of indentured servant by restricting their right to movement, ownership, voting rights and employment among others things. This amendment insured individual states couldn’t take away rights guaranteed by the Federal government. Good idea, right?

Well, one hundred fifty years later the Judiciary has seem fit to carry this ball out of stadium it seems. Strange and wonderful legal measures continue to be taken under “Substantive due process” doctrine said to be originated from the 14th Amendment. Basically speaking the Court wants to grant even more rights than was first realized under the Constitution. This doctrine arose in the 1930’s, during the struggle with the Supreme Court to enact the New Deal agenda.


The Supreme Court is a body less representative than the British House of Lords, the hundreds of the upper nobility, who were to have maintained the interests of the aristocracy.
Many on the Supreme Court over recent history seem largely interested in making over society in a manner to their liking not simply interpreting the Constitution. If that’s the true purpose of these geriatric legal giants then maybe it should be expanded by 426 some members (to 435, the same as the House of Representatives) and make it truly representative. The appointment for life might not be a good thing in this case.

It had relied on the 14th Amendment in 1954 to knock down the “separate but equal doctrine” of two unequally funded school systems, white and black. This was not the original intent of the law, but still a fitting thing, it seems. It righted a social injustice allowed in another Court ruling Plessy vs. Ferguson (1896) which failed to apply the 14th amendment to dual segregated school systems, white and black of the South.

In the 1960’s activist judges began to promote there own social views beginning with family reproductive “rights” whose rectitude were best left to the legislatures to ascertain. An issue with some popular support but initiated by judicial fiat nonetheless and not much different than the Dred Scott rulling of 1856. Both denied a segment of humanity of their civil rights.

Once again as compelling as the issue is it’s not up to the judicial clique to determine what the will of the people may be on a certain issue; that’s why we have popular elections.

Iran has its Islamic Mullahs; we have our Judicial Taliban in the courts, it seems. The Mullahs have their sharia, Islamic Law and the Judicial clique make law not interpret it, buttressed by their bed rock belief that any attempt to ground law in universal principles is anathema. And thus they’re open to make it up as they go along.

Let me say emphatically that Law is too important to be left up to Lawyers. Lawyers are not disposed to engage in deep thought. I can’t recall a lawyer who has ever been moral philosopher. Yet, moral philosophers have spoken on Law, such as Immanuel Kant and Thomas Aquinas, great moral philosophers.

Current crop of attorneys are largely schooled in a social relativist version of law. Supreme Court Justice Oliver Wendell Holmes is their champion: a Civil War hero who fought at bloody Antietam battlefield, and was wounded 3 times in the Civil War and discounted any attempt to apply principles to law. He wrote:

…men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite…

My response is that, for one, arguing from principles doesn’t make justices “mouthpieces of the infinite”. Once again he’s creating a straw horse, a false image to contradict. He’s quoted further to say:

The common law is not a brooding omnipresence in the sky.

I ask myself who thought common or non-statutory law WAS some “brooding omnipresence in the sky”? Then I guess him to mean to say any omnipresence is suspect and whose idea should be kept from influencing formation of Law.

Law should be viewed from the stance of the bad man.

Law here is based on no higher principle then agreeing not to harm one another, it seems. If this were true there’d be no seat belt or helmet laws I suppose.

'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. A judge must be aware of social facts. Only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill his functions properly.

The social context is all important to Holmes.

"General proposition do not decide concrete cases."

Holmes seared by his experience in the Civil War refused to see the possibility of application of general moral principles to law and adhered to the idea of law at “bad man” level. Holmes leaves much unsaid. But I can guess; for Holmes law is an agreement between brutal men, who agree to not hurt one another. I won’t harm you if you won’t harm from me kind of thinking.
Admittedly, the farther from universal principles one wanders the difficulties of applying law increase. This doesn’t negate the possibility of their application. However, Holmes refuses to make any attempt at all to argue from principles.
The ancient traditional ideas held view law was to make us better. Prevalent thinking is little can make us better and it’s best not to try. For example this thinking would concur with the idea that the habit of watching porn movies all day probably is not a good thing to do, but not much worse than watching motivational tapes, since in the end not much about us will be affected by it. Oddly enough current society does make law to improve us: restriction in smoking in public places or seat belt laws seek to change behavior.

But nonetheless it is thought that moral precepts like Ten Commandments or Buddhist Eight Fold Path are useless things to reference and instead let’s just let the judiciary make it up as they go along. It’s surprising to learn that a depiction of Moses giving the Ten Commandments is on facade of the Supreme Court House. Somebody thought at some time in American History we can be informed by general principles.
Natural law philosophy presumes law’s origins are universal. The Declaration of Independence written by the Thomas Jefferson, who would become the 3rd President of the United States, used natural law as a basis. It reads:
We hold these truths to be self-evident, 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.
Please note that these truths being self evident are those that can be discerned and in addition we are “endowed” with unalienable rights by some “brooding omnipresence”…. wait …no, a CREATOR. So we know two things here: there is truth or law, if you will, that can be discovered and it’s granted by a Supreme Being. This is in sharp contrast to what we just reviewed that Holmes was saying.


Lawyers are rightfully held suspect since they are the inheritors of the sophistic rhetorical tradition. The Ancient Greek assembly of 500 members would try cases each day in Athens and were shown susceptible to being swayed by persuasive rhetorical flourishes. The trained rhetorician, much like our modern lawyer, was held in much esteem for his abilities to sway the assembly. Law was very much was what the assembly was feeling that day.


Mandatory minimum wage laws and overtime laws were first thought to violate the right of contract between employee and employer. Judges struck these down as violating the inviolate property rights imbued in the constitution though not specifically stated. This is reminiscent of the judges today who see all manner of rights within the constitution based on their particular social views.

Of course there was no specific protection of property rights in the constitution but judges made that up and began to strike down overtime laws and such. The court was “reformed” from its errors during the social legislation of the New Deal Roosevelt.

The Supreme House of Lords, I mean Court, the Dred Scott case is famous for denying the Negro slave rights as human beings. The ruling understood the Negro as people, they just didn’t have any rights under the Constitution, as such. They were deemed chattel or tangible property like a horse or cow or barn. This ruling did as much as anything to precipitate the Civil War.

So we see U.S. House of Lords, I mean Supreme Court, sorry I keep slipping up there, is not a entirely reliable. In regards to slavery and property rights as seen above. Nonetheless, it seems as if the Court is granted supremacy over other branches of government in the eyes of the public. They were on the right side of the civil rights with Brown vs. Board of Education (1954) which ruled separate was not equal but one must remember it was civil rights legislation in regards to voting and housing and employment, not judicial fiat that fully addressed this issue.

Ideal purpose of law is to build a better person. Of course the sinister aspect to building a better person is that it’s been the state, whether authoritarian, Fascist or Nazi or totalitarian, Communist that has aspired to build a better person. Any effort to advocate such is thus suspect.

* Unattributed quote.