Doug Smith: Further thoughts on Settled Law in view of Kavanaugh

26 Jul

kavanaugh

President Trump nominates the Honorable Brett Kavanaugh for Supreme Court Justice

 

doug and mark 1

This is the second in a series on “settled law” by historian and Free State Patriot social editor, Doug Smith.

7.26.2018


 

Settled Law. I still find that an amusing concept, that only Leftists circling the wagons, (though why would they do that, since violence never settles anything?) about a favorite decision can espouse with a straight face. Historically, in fact, little law is “settled”. By settled, of course, they mean “I don’t wish to debate it.”

But let us look at the ways law is, in fact, settled.

By whim.

One of my favorite movie lines is Yul Brenner, as Pharaoh, pronouncing, “I have said it, and it is so. So, let it be written. So, let it be done.” Yes, when the (Pharaoh, King, Emperor) is appointed by or descended from God or gods, then his pronouncements are sacrosanct and may not be questioned. We depend upon his good nature to make good laws. Occasionally, as in the case of Bernadotte in Sweden, or Solomon, or James I in England, it turns out mostly good. Often, as under Henry VIII or King John of England (for those of you who are NOT fans of history, look up Runnymede or read Ivanhoe, or the Magna Carta.) it turns out rather badly. You could ask Anne Boleyn, but the settled law from Henry put her in an awkward position:

A tisket a tasket, a head in a basket, it cannot respond to the questions you ask it.

If the basis of settled law is by the whim or desire and a single or exalted few, then we must hope for the “better angels of their nature “to win out. History suggests that this is a rare, and brief, occurrence. We may observe in passing that the whim of a POTUS or 9 SCOTUS robes carry the same inherent difficulty.

By mob

This is an easy, but equally dangerous way to “settle” the law. Demagogues have whipped up crowds from the days when demagogue did not sound like Greek, because, well, they WERE Greek. It is a powerful weapon. Later, in Rome, the crowds demanded “more bread and circuses” from the Senate, until they were a hollow pipeline of the national treasury into the mob in the street, and little more. Settled law was to pay them off so they would not riot. It worked out, until it didn’t, one cold winter in 406 AD, when the Rhine froze and barbarian hordes swarmed into Rome. Within a few years, they sacked Rome itself, which did not work well for either the Senate, or the mobs. Turns out, there is always a bigger, badder mob, learning from the previous mob that violence does, indeed, solve anything. Rule by mob is rather like setting backfires to fight a brush fire. Make one mistake, and the mob, like the fire, is unforgiving and unstoppable. And, like fire, the more you feed it, the more it wants to eat, until there is nothing left. Including, as Robespierre found, just before the blade fell, the demagogue.

By Outlaw

This is a curious but occasional way of doing business. The pirates working the Caribbean with near impunity, Al Capone buying off Chicago and running his own soup kitchens, medieval bandits extorting tolls to pass a road, are all examples of law by outlaw. The problem, of course, being that they are making up their laws as they go, and that is going to go poorly for the guy who is not holding the gun.

Law

Then there is the law by agreed upon social compact, i.e. the Constitution. The progressives who prefer to rule by a combination of 1 and 2 (the whim of judges and do as we say, or we will shriek and break things) are fond of saying those who support the Constitution are simply “Old white guys who want to hold on to power.”  It is a shame to find them so woefully ignorant of their own history.

In fact, the basic legal framework was built by a group of folks who wrested control over their future away from England, and then spent over a decade arguing over what they would all agree to for governance. The Anti Federalists argued (and we can see the wisdom of their fears) that trading a tyranny in England for one in Philadelphia (Washington was not the capital then) was no bargain, and the Federal government ought to be kept too weak to oppress the people.  Nor were theseThe Federalists argued that it was the very fact of a weak central government that permitted Great  Britain to exert their will on the colonies without considering the consent of the people. (And we can see examples of the wisdom of their argument as well. Imagine South Carolina and Ohio debating whether to send troops to assist President Roosevelt with the invasion of Normandy)

2 opposite positions, but both valid to the health and survival of the fledgling nation, and to that of we, their descendants.

A few observations are in order about the social compact of law.

First is that power, political or legal, is ultimately backed up by violence. From something as mundane as running a stop sign or deciding if a Cuban boy whose mother died bringing him to Florida will stay with an Aunt or be forcibly returned to his father in Castro’s Cuba, there is always the prospect of a gun to the head forcing the question. Power is always backed by the threat of violently enforcing it.

Second is that, as noted by the Federalists, absent any concentrated power of government, power tends to devolve to those most willing to commit violence on their neighbors to enforce their will. When the Sheriffs under King John rode out to extract taxes they had armed men with them. On the other end of the spectrum, you may read at length of lawless, anarchic Missouri and the warring mobs in the run up to the Civil War. Neither alternative is pleasant.

Thirdly, a fluid, or, as leftists who are about to ignore the Constitution are wont to say, “living” legal compacts, are utterly meaningless. For the same reason that we build our homes from “dead” lumber, and not “living” trees, we need stability.  Suppose you and I enter into a contract in which I agree, for a certain sum, to sell you my house. We execute that contract, money changes hands, and we both move. Ten years, later, the value of the house has appreciated, and is now worth 20% more. So, I engage a good progressive lawyer, and inform you of the “living “nature of our contract, and insist that you pay me the difference, or vacate what has been, for 10 years, your home. (Side note: most of the money changing hands will, of course, go to the blood sucking lawyer, which explains a lot about why they have such creative notions about the law) You wouldn’t like that living document, would you? You would protest, this is what we agreed to, and you can’t change it now!

Or suppose that we had never met. But I’ve been looking at your house and decided that maybe I could build an office building where it stands. Of course, my office building would pay more in taxes than your house, and I make that point to the City Council. Now, instead of me having to come to you and offer you what you want to let me have it, the City forces you to accept the fair market price, as determined by them, for a house you don’t want to leave, vacate it, along with your neighbors, so they can offer it to me for development. Never mind that you and I are both private citizens, and never mind that I decide after all, not to build my office building, and the City is left with an empty lot, some angry and justifiably aggrieved citizens. If the Constitution is “living”, then the “Courts” can rule that the takings clause does, indeed, permit such an action, not just for schools, roads, and public buildings, but because the City Council likes My idea for using your house better than your idea of just, well, you know, living there. Now before you scoff and tell me that I’m being ridiculous, look up the case of Kelo vs City of New London, Ct and the SCOTUS decision in that case. For that is precisely what happened there.

Finally, the protections of the law, that is, the Constitution, are primarily designed to protect the people from excesses and corruption by those in power, exercising the awesome power of the Federal government.  As Madison put it,

First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

These protections are for the people, that is you, dear reader, if you are a citizen of these United States. Madison and the Anti Federalists no more intended that these should be a living document, subject to the whim of a lawyer or tyrant, than a locksmith would intend that the door to your house have a living lock, permitting access to whoever some judge decided could share it with you.

And while there is debate as to what laws we desire, Madison and the other Framers included a mechanism, and a right, to amend these laws, but made it tedious and difficult to do so. And there is genius in that. We can, and do, and have amended the Constitution, but only in those cases where it is clearly the will of the people, as demonstrated by their ability to vote their desires and for each state to weigh in on the question.  In the same way I can amend my house, by tearing out a wall and building a door, but do not wish for my studs and joists to amend my house by growing vines, we can amend our laws without being held captive to the tyranny of an aggrieved minority, however loud or vociferous. One judge, or a handful, ought not to be entrusted with the power to remake our laws. Nor, except when Congress abdicates its authority, and the Democrat party finds it is easier to shop for judges than to win in the court of public opinion and get the votes for their agenda, do they.

To our detriment, that has been the way of things for some time. But we ought not to let it continue. Whether you are on the left or the right politically, you ought to want the protections of the Constitution to be adamant. If you are on the Left, and you like the rulings various courts have made, consider this. Suppose Conservative judges adopted the same play book. Suppose, instead of revering the law, they chose to revere agenda above all else.

What liberal organizations might they outlaw overnight? What liberal rulings might they rule invalid. Suppose a 7-2 Conservative SCOTUS sat down with a newly elected POTUS and said, ok Mr. President, tell us what you want us to do this year.

Liberal reader, that makes you shudder, doesn’t it? As well it should. But while it makes Conservatives shudder that something very like the opposite has occurred all too often, especially in the Anthony Kennedy era, that is not what Conservative Justices will do, nor is it what Conservatives expect. Instead, both the people, and the judges, expect that a 9th grade Civics class should be able to figure out what is legal and protected under our Constitution, by simply reading it. And, more to the point, should they find something they dislike, understand the process by which we change our laws, and govern ourselves. If they understand that, they will properly exercise the franchise, and the power, which is, by law, entrusted to the people.

Sadly, far too many do not. And that is why we are increasingly governed by the 1st three options: whim of judges, deference to mobs, and fear of outlaws.

Our great experiment, self-government, has worked, not without fault, and not without growing pains, going into its 3rd century now. If we give it up, we will be ruled by the most ruthless men with guns.

It is not too late to reclaim it.

 

 

 

 

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