Regardless of where you stand on same sex marriage, ObamaCare, or the very idea of “unintended discrimination,” the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the Founders and Framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and a frustration of the state, whose natural impulse is to forever increase it’s own power. It should be of no debate that a country forged in revolution against a faraway King and whose political and social ideas are expressed in the Declaration of Independence, was born of a distrust of centralized authority and a desire for liberty, which was always defined by negative rights. Separation of powers was a key element to the genius of our Constitution, an uncompromisable check on the coalescing of power around a single unified entity. And yet what we have today is an Executive that makes law; a Legislative branch that makes law; an administrative state that makes law; and a SCOTUS that makes law.
That’s about as unified as one centralized federal power can get.
Proper interpretation of law — and adherence to the process, when it is joined with a clear idea of what it is we think we’re doing when we interpret — is one of the foremost safeguards of liberty, in that it assures the stability of law and in so doing allows for equality before it. Without a fixed and repeatable process, the rule of law is surrendered to the rule of caprice, the rule of whim, the bald assertion of power — all carefully camouflaged as legitimate “interpretation.” It is not: in the context of legal hermeneutics, certain conventions apply. First, the court, in order to even begin the process of interpretation, has to acknowledge that the text presented them was intended as a text written to function as law; this seems fairly self-evident, but too many ideas of interpretive theory would try to kill off the author(s) in order to claim power of the meaning of a text for themselves. Second, because we are dealing with law (and not, say, Joyce’s Ulysses), legal convention requires that the texts produced by lawmakers and handed over to courts for application and interpretation must be as clear as possible in their practical expressions. That is to say, because we want laws to be understood, they need be written in such a way that the intent behind them is as clear and unambiguous as it can be made to be. This is how convention serves intention, and why we use convention as one of the tools to determine intent. In law, that convention is crucial: because the force of law carries with it the potential for fines, imprisonment, and even death in some instances, we insist that it be clear and easily determinable. Bad law that isn’t clear should be returned to the legislative branch for revision.
Unfortunately, we now have courts that believe it is their job to rewrite the bad text of the legislature to comport with what they claim is legislative intent. But if a court is aware of a legislative intent that doesn’t appear in the text of the law in any comprehensible way, they aren’t “interpreting” it at all: They are laying claim to knowing what it means prior to any act of review, regardless of how someone not privy to that hidden and unsignaled intent cannot possibly be expected to be. Whether it’s turning “penalty” into “tax” or turning “by the state” into “by the state and also the federal government and IRS,” these acts of judicial presumption are arrogant and immoral. No one would ever allow that “a court can write the law as it so sees fit, even in contradistinction to the legislative branch who wrote it.” And yet when courts do so — but do so using the emptied signifiers left them in a text whose intent they either dismiss, invent, or claim special knowledge of — this is precisely what they are doing: they are rewriting law, creating new texts from the ones presented them, and then attributing their *own* superlegislative intentions back to lawmakers, whom they claim to be “helping” by rewriting statute. This is an act of usurpation on several fronts, but for our purposes, it replaces the text of the law with the ancillary texts produced by the Courts — which is much like including a particular set of critical annotations to, say, Huckleberry Finn, and then claiming that Twain’s intent is to be found there — or at the very least revealed there — rather than in the text proper. It is the Court’s way of replacing the law with its own gloss on the law, which becomes more important than the primary text as presented and passed by the legislature.
As Justice Scalia points out in his dissent to Obergfell, Anthony Kennedy simply does not have the authority to determine “settled law” for 300+ million people using “it just feels right” and “it’s time” as a legal and coherent jurisprudential rationale. The State does not grant one “dignity,” nor should it, and Justice Kennedy doesn’t get to find the (surreal) “right” for people not to be lonely. He likewise doesn’t get to decide, as he did in the housing decision, that organic statistical dispersion is somehow de facto proof of “unintended prejudice” — a ruling that suggests that whites, or any wealthy people who, because of their wealth, must be kinda white, are necessarily bigoted even if they don’t know it, all because they have (materially) more than someone else, and as a result live in areas where those without the same means typically do not. This “disparate impact” racialism is a recipe for the very dangerous and illiberal “equality of outcome” proposition used by socialists everywhere (with the political leadership exempting itself from the consequences, naturally). Not to mention, it is based on fundamental inequality before the law, with certain groups granted special “rights” it is not the Court’s place to grant.
Too, John Roberts doesn’t get to pretend he can see the secret intent of a statute passed by lawmakers who didn’t bother reading the thing that, on practical perusal, explicitly signals an opposing intent (one that was backed up by clips of Jonathan Gruber bragging about how state exchanges were intended to drag Governors who wanted federal funds along, kicking and screaming if needs be).
Regardless of what would-be philosopher kings and queens decree from their high benches, the US was designed as a representative republic, and the Constitution gives the federal government limited powers, leaving the rest to the several states and to the people, who are meant to self govern within the context of a civil society. Using Civil War amendments (ironic, given that, as amendments, they were ratified by the states — not thrust upon an unwilling populace by a single vote of the Supreme Court, and in fact were used to overturn SCOTUS decisions upholding slavery) to crack the 150-year-old “right” for the federal government to define marriage, begs credulity: the people who wrote and ratified those amendments had in mind a specific use for them; they never intended to give a future Court leave to empty them of their context and specifics and expand them to usurp powers that are more properly left to the people — that is, to create new rights — be they same sex marriage protections or birthright citizenship protections — in the names of those legislators and states who voted for, then ratified, the 14th Amendment.
When we allow Courts to claim that their rewriting of law is in fact an expansive “interpretation” of law, we are giving in to a linguistically incoherent idea of what it means to interpret and turning the process into a Will to Power. Kennedy disregarded the intent of the 14th Amendment, clear not only in its plain text and historical context but also in its extant legislative history. He has effectively deconstructed what in our history “liberty” has meant (see Thomas’ dissent in SSM case) and rewritten that entire history, deconstructing it and inverting it, much like our culture has done w terms like “tolerance,” which no longer means a right to offend but instead has become a right not to encounter offense, no matter how unintentional that offense may be.
Ted Cruz puts it very succinctly when he notes “not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.”
Arbitrary law brings with it the necessity of police state, because to enforce unequal law one must rely on oppression. On tyranny. Messy “interpretive” thinking creates the kind of consequences we’ll soon see, when same-sex couples begin suing religious institutions who refuse to perform their ceremonies. There’s a REASON Hillary Clinton’s campaign wouldn’t come out and say that the tax exempt status of a church not comporting with the Unites States of Anthony Kennedy may be in jeopardy.
Incidentally, you’ll note that I don’t mention the liberal justices at all here. And that’s because their votes were pre-ordained. No one expected any different. Which is as much of a tell in re: our modern justice system as is any other I can think of.
We live in a post-Constitutional period. And those currently celebrating the trees are too blind and overcome with superficial bliss to see that they are actually wandering deeper into a forest that will eventually envelope them, and from which they will never be able to find their way out.
Up until a few days ago, I held out some hope that we may have had a Supreme Court that at least partially understood its function. That is no longer the case. I don’t care a whit any more about their decisions.
As you and others have said, we now have all three branches of government writing legislation. A few of our representatives still appear to believe in the Constitution; a few others will pay lip service to it, and the remainder will claim that these rulings are in line with the Constitution.
We live in a fascist state, and the pace of the advance is increasing. For most of us, right now its intrusion into our lives is only to the point where it offends our sense of liberty. We should enjoy the relative calm while we can.
No person would ever accept getting a ticket for, say, driving on a suspended license with a set fine of $500 and then having a judge pontificate from the bench that the legislature really meant $5000.
Yet we are subjected to an orgy of authoritarian cheers for SCOTUS’s being on the “right side of history” because “it is time.”
The phrase “On tyranny” put me in mind of Xenophon’s Heiro, which is subtitled “On Tyranny”. Therefore too, in mind of Leo Strauss’ reexamination or commentary on Xenophon’s work.
One thing in particular about Heiro which stands out, at least as Heiro professes his own situation, is the life of fear, of abject terror, in which he lives. He professes to his interlocutor — the poet-wiseguy Simonides — his misery.
Strangely (or perhaps not strangely) in contrast to Heiro’s story of tyranny, I do not see the fear one might suppose is also present in the lives of our modern would-be tyrants.
What then, is missing? That is, beyond what Heiro describes as his hidden life — which in our days terms is the hidden life of our would-be tyrants?
Perhaps we are missing.
we now have all three branches of government writing legislation
When Congress can “punt” to SCOTUS (who will divine the super secret structural intent) it removes actual responsibility for the law FROM Congress
whereby the critters can whine “not my fault” when they face election and appointed-for-life judges can flip the bird to all us unwashed, unenlightened, on-the-wrong-side-of-history rubes.
How you get to Darleen’s link (when you can’t) matters: I think it’s here.
We should make this the new United State national anthem.
thanks, sdferr, didn’t know I broke the link.
lee
I believe this is in contention for new anthem, too.
Suing churches for not performing SSM? Losing their tax-exempt status?
Yeah. But when those churches refuse to comply, everything and everyone associated with them will become anathema.
Church-sponsored universities will lose their accreditation, will be expelled from the NCAA, will not be permitted to accept federally subsidized loans or grants, will lose membership in scholarly societies, will not have their papers accepted for publication, etc.
Graduates from such universities will not find employment or will be fired.
I work for a company that headquarters in Silicon Valley. Our customers (including the fed and DoD, as well as giants such as Apple, eBay, etc.) will insist that they expel employees who are h8rs (or even close their Utah office). That will happen as soon as it become fashionable to do so or after the company goes public.
Won’t affect your marriage?
Nope. Won’t affect our marriages. Just our education, our our livelihoods, and our ability to participate in “polite society.”
No big.
[…] Jeff Goldstein on Protein Wisdom: How you get there matters. Still […]
Be the Best Saboteur You Can Be
Posted by Daniel Greenfield
You are the Someone
by Richard Fernandez
Because it’s easier to destroy someone for an offensive remark when you make up the remarks yourself.
A report by an EU official who also attended the speech, tells a different tale:
Turns out his accuser, Connie St. Louis, is a habitual liar.
Except not exactly. This DailyMail link provides the full story. And here’s a Tweet to share.
very liberal libel laws in england. hopes she ends up debtor’s prison with a cellmate named mohammad
I think there will be a de facto carve-out for certain black churches and for all mosques. To keep the exemptions the black churches will be informed of just what is expected of them, not that it will be anything they wouldn’t want to do freely but this will not be a free choice. Being favored of his Majesty always has a price.
I don’t expect that the unity and forgiveness that was shown in Charleston after the murders will be seen again. That outpouring was a horror that the Left will not let happen again. They were successful in tamping it down by use of the confederate flag and the SCOTUS’s rulings. Strings are being attached even now to pull if anyone tries to do that again.
True, sincere Christianity, is to the committed Left, one of their main enemies. It was a force that helped bring down the USSR and can never be forgiven for that sin. They must either destroy it or, as they have done with many mainline denominations, co-opt it and render it harmless to the cause. SSM is the current tool for that fight. Useful now but it will be tossed aside when it no longer so. The Left has a large dustbin.
we now have all three branches of government writing legislation.
Yeah, but they all write it differently. The Legislative writes the forms, the Executive fills in the blanks on the forms Congress wrote, and the Judicial tells the Legislative and the Executive what they were really trying to say.
So, Division of Powers baby! The forms are still obeyed.
I don’t expect that the unity and forgiveness that was shown in Charleston after the murders will be seen again.
You haven’t been listening to Glenn Beck, then.
He’s been working behind the scenes (mostly with David Barton) to gather together a new black-robe regiment, the original of which birthed American Independence.
All of the great awakenings in America started at the pulpits, from Independence to Abolition to Civil Rights.
It needs to happen again. So on the next anniversary of the MLK speech, Aug 28, Glenn is going to Birmingham, having teamed up with an impressive black preacher, to start a new Civil Rights movement, this time for Religious Liberty.
I recommend watching the video at the link. (The transcript is verbatim and therefore unintelligible.)
You don’t need to be into the God stuff to be a staunch defender of religious liberty, aka Freedom of Conscience for all—believer and non.
Glenn is going to use MLK’s commitment card as a guide: http://www.glennbeck.com/2015/06/10/from-radio-the-mlk-commitment-card/
I know that many people don’t see this approach as muscular enough. Malcolm X didn’t either. But there is no way to fight this kind of darkness except with blinding light. We cannot petition God for deliverance unless we’re willing to abide by His precepts.
Charleston confounded the rioters. Stopped them in their tracks. Set their light on a bushel for all to be illuminated thereby.
The Left was forced to divert its attention to a symbol instead of burning down a city.
This will be a long fight. The Left has become the Inexorable Force so we must become the Immovable Object: steadfast, serene, immense.
We have the numbers. Now we just need the organization.
I find it surprising that a website dedicated to linguistic purity is desperately trying to re-brand a Confederate-flag-waving redneck racist kid like Dylann Roof, who was reportedly ‘awakened’ by the Council of Conservative Citizens website, into a ‘liberal progg.’ This is inane. I don’t think that anyone here is that stupid, but you should realize that no one else out there is stupid enough to fall for it either. (Racist redneck killer of black people? Sounds like an Obama voter to me!)
What the hell are you on about? I don’t think anyone here has catigorized Roof as anything except crazy. Charles Manson crazy.
I seriously doubt the little bastard has any coherent philosophy, unless mentally disturbed anarchist is a philosophy…
Linguistic purity. Oh brother…
I guess in the new United State having standards equals demanding purity.
agustus_gustafson
If you can point to that ‘re-branding’ anywhere in Jeff’s post, I’ll pay for the rest of your re-branding surgical needs.
Actually, he sounds like a kid who was possessed by the Devil. Or by his memes.
Off-chance..did he ever visit the White House?
Ernst..
That’s wicked correct!
Silicon Valley fueled this great transformation; that they will also fuel the great marginalization of non-conformists? Expect it.
Heh.
[…] https://proteinwisdom.com/?p=57127 […]
[…] https://proteinwisdom.com/?p=57127#comment-1251981 […]
The troll is just a new incarnation of mileycyrussays.
Here’s a good read on the topic.
http://theaxisofego.com/2015/06/27/what-was-lost-obergefell/
Meanwhile, Frey is still stuck on stupid.
http://patterico.com/2015/06/27/king-v-burwell-intentionalism-trumps-textualism-and-the-rule-of-law-dies/
Here’s a comment I left at Patterico’s:
This is not a failure of intentionalism. Intentionalism would demand that the court cannot rule on a law that has inconsistent and incoherent text, and send the thing back to the legislature for a rewrite. It is their responsibility to clearly convey their intent in the text, the court is bound by the text as it is written.
If the court was look to the intent of the authors of the text, it’s clear the intent was to draft a purposefully murky blizzard of bullshit for political reasons, that is, it otherwise would not have passed.
The court shouldn’t have taken the bait.
Which case is that one? Obamacare or Garriage?
Obamacare.
Goddamn brilliant, Jeff.
Thank you.
Then PF’s ignorance is on display like a baboon’s ass, since the intent of the legislation was to do exactly what it said –i.e. subsidize individuals in those states that set up their own exchanges– out of the as it turned out mistaken belief that the desire for “free money” would cause the citizens of the several states to pressure the governments of their states to set up the desired exchanges. The Gooley (?) putz even said so.
Intentionalism doesn’t even enter into it –the majority imposed (or rather accepted) the post facto reinterpretation of what Congress intended on what Congress wrote into law. Which, is probably acceptable according the rules of textualism, in the sense of the text says what I can torture it into saying. But, as I’m not currently familiar with those old arguments, I can’t really say one way or the other.
Patterico’s argument, near as I can tell, is the court followed intentionalism, ie, the law was intended to be for everyone, so that’s what the text means, however it was worded. Because THAT’S how intentionalism works. Or something.
So yes, baboons ass.
Actual intentionalism is his, Roberts, and the Left’s foe. What Roberts has done is re-define it as something which it isn’t. As something which is opposite of what intentionalism is in order to destroy it as a means that can be used to take back the language from those who twist it to advance the Left’s agenda.
Either that or this educated man has no clue about that which he is saying that he is doing. That would be hard to believe but there are examples of it around the legal profession.
However by doing this publicly, to be widely read and seen by those who do not understand what is being done, he takes this word, intentionalism, and makes it signify a bad thing to those on the right who will now shy away from any association with that, now thought to be bad, method of interpreting/reading a text.
This is similar to Stalin’s defining Fascism as right-wing and the New Left adopting the cloak of Liberal to hide behind. A destruction of the ability to think about something in a way that harms the cause of the Left.
Another one that gets it:
http://www.americanthinker.com/articles/2015/06/6_26_2015_14_18.html
legislative intent and intentionalism aren’t necessarily the same thing,
depending on whose hermeneutic is being gored.
Gee, whee have we seen that before?
geoffb
You know as well as I that PF is doing this not from rational deliberation but because of a long-festering hatred for this site’s host.
No other explanation.
Another way of viewing the two Roberts “opinions.”
But is hand-puppet any better than insane?
I know why PF is doing it, I just thought that Roberts, or whoever wrote his opinion, might be taking a stab setting up a straw version of intentionalism that is easily torched whenever the method is broached to use read what a text says. won’t work on those who know what it is but will work fine in political speech and talk shows.
I’m probably having trouble getting across what I mean. Which fits the subject.
Rights are absolutes and as such, cannot be conferred, only affirmed.
Anyway, the Republic died years ago. The Obamacare ruling merely woke more people up to the fact.
The homosexual marriage ruling was merely urinating on the corpse.
The Republic died either in 2010, when Obamacare was passed, or when the Sibelius [sic?…very sic] decision was handed-down.
However, the three cases decided last Thursday and Friday were the final three nails in the coffin of The Republic because the Majority Opinions were so brazen, bald-faced, and nervy in their language. Add to that the insolent naked hypocrisy of John Roberts between his Majority Opinion on Obamacare and his Dissent in the fake/play marriage case.
If I may be so immodest, let me quote myself from a few days after Obamacare was signed into Law:
This now goes for the rulings of The Supreme Court.
Source: http://thecampofthesaints.org/2010/03/23/the-sovereign-resolves/
Bob, actually, the Republic was interred when the so-called “Patriot Act” was passed and then the bailouts even though something like 60% of voters opposed the bailouts.
Much as I dislike Obama and what’s he’s done, we don’t get here without a big assist from the prior administration.
I would use the phrase ‘prior administrations‘ – this has been going on since T. Roosevelt.
[…] Jeff Goldstein returned from his self-imposed exile from blogging to offer a brilliant assessment of the impact of, and reasoning behind, the recent Majority Opinions handed-down by The Supreme Court. It is entitled: How You Get There Matters. Still. […]
[…] Instapundit/Ed Driiscoll and Hot Air/Mary Katherine Ham are not a supporters of this idea… I like Ted Cruz and I support him running and wish him the best. It appears to me the media is making more of Ted Cruz’s comments than is warranted. My prediction is the left will defy the Supreme Court (SCOTUS will do something to piss them off eventually).Right now elections matter. We need to elect conservatives who will appoint conservative justices. No more stealth nominees like Roberts or “pragmatics” like Kennedy. We need to fight for conservatives to be appointed to the Supreme Court and the Courts of Appeals and we need to resist (like Democrats do to us) when Democrats put their progressive nominees on the Court. And as Ace of Spades noted, you can resist in other ways. Andrew Jackson Defying The Supreme Court: “John Marshall has made his decision now let him enforce it.” Defying The Supreme Court: A Democrat Tradition Since 1832 And let’s not forget the Elizabeth Warren’s family roll in the Indian Removal Act and the Trail of Tears Rush Limbaugh: Why is it the more libs win, the angrier they get? and Republicans cannot win without voters who care about social issues Reason: We are not getting rid of the Supreme Court Peach Pundit: The Sad Truth About King v. Burwell Camp of the Saints: On The Death of Rule of Law, Part I (what do you do when the Court defies the Constitution…) Protein Wisdom: How You Get There Matters. Still. […]
[…] they are, Anthony Kennedy)…As Edmund Burke said: “The only thing necessary for the triumph of evil is for good men to do […]
[…] Recently, I have been having a set-to with ProteinWisdom (Jeff Goldberg) on Twitter. Can’t really call it a debate,discussion, conversation, or even random ramblings as he resorted to the tactic of calling me a fascist nearly immediately. But the gist of our “engagement” regards the latest Supreme Court rulings for Same Sex Marriage, for the ACA, and against Housing Discrimination. Whatever one thinks of these decisions, ProteinWisdom argues, “…the process of how we interpret and apply law — and what counts as liberty, in the sense it was intended by the founders and framers and to the extent it exists in a representative republic — is crucial to the protection of the individual and a the frustration of the state, whose natural impulse is to forever increase it’s own power.” – See more at: https://proteinwisdom.com/?p=57127#sthash.XexBTpkJ.dpuf […]