If justices were appointed by merit, judge Posner would be on the Supreme Court. This is an excellent summary of how Constitutional law actually works and why it ought really to be called "Supreme Court law" instead.
I quote below the crucial lines:
"Almost the entire body of constitutional law was created by the Supreme Court justices by free interpretation or no interpretation of the Constitution, just using the Constitution as a jumping off point...The text doesn't impose a limit; precedent doesn't impose a limit. There's obviously something circular. Supreme Court justices make up some principle.[which becomes a precedent] If judges follow that [precedent], they're just following the law, they're not making anything up. But, they're applying something which was itself made up by judges. And the Supreme Court's not bound by its precedents. It can always overrule them or distinguish them to death or distort what they say. So they have a complete free game, except for public opinion."
How the Constitution is overridden, based just on examples given in the interview (many others could be provided):
invert meaning (searching with a warrant)
ignore ($20 amount in dispute or creation of air force or right to bear arms)
change meaning of terms (cruel and unusual punishment, right to counsel, self-incrimination clause)
Most of these are crucial provisions of the Constitution. They are emptied of their meaning at the will of the Court. This is why the Court is the unassailable pinnacle of our permanent government. And almost everyone in the government is permanent--the Presidency is the only remaining position with any power that is non-permanent. Congress is de facto permanent, the Court de jure permanent. The professoriate is permanent. They tell the government and the media what to think. The media is permanent. Government and the media together manufacture consent among hoi polloi. And big business plays nice with the government because, when the government is permanent and powerful, this is simply good business.
All this amounts to a vast web of interrelations that was produced, per Moldbug, by adaptive evolution--not, for the most part, conscious planning. (Admittedly, there are periods when adaptation occurs more quickly, like the American Colonial Revolt against the King, the shredding of the Articles of Confederation in favor of the Constitution, the War of Northern Aggression, the FDR leftist coup, the LBJ-Nixonian conspiracy to explode welfare spending, open the borders to elect a new people, and regulate everything still standing). Of course, conscious planning on such a large scale has historically produced mostly bad results--the Soviet Union being the largest example (though the French Revolution remains the archetype of this fallacy and Burke's book the archetypal critique). Nevertheless, it's worth asking: for whom is this system of ours adaptive? Cui bono? The intellectuals determine the permissible range of thought, the mind space within which the functional rulers operate and to which they confine their subjects. The bureaucrats and plutocrats play the practitioners to the professors' theoreticians. And the (state-sponsored) media and state-run schools convey the parameters of existence to hoi polloi. Our Dear Leader Obama would inform us that all well-intentioned people, not just Americans, benefit from this system. Our Dear Leader might then compare our system to the ideal republic of Plato, led by the philosopher-king, a disinterested genius who would ensure the (perhaps Procrusteanized?) equality of his subjects and peace (submission?) among them all. How could anyone doubt the beneficence of Our Dear Leader, or question the feasibility or desirability of his particular Utopian vision?
But, still, really, Our Dear Leader aside, cui bono? It's generally a useful principle to assume that whoever end up with the most power in a given social configuration are the ones with the most bono. And this would be, to varying degrees, the elements of the Polygon (or the Cathedral), as summarized by Moldbug:
The Polygon might be defined as the "extended civil service." It consists not [only] of those who hold actual formal GS rank, but those whose position demands a sense of civic responsibility - real or fake. The major vertices of the Polygon, by my count, are the press, the universities, the judiciary, the Fed and the banks, the "Hill" (congressional staff), the civil service proper, the NGOs and transnationals, the military, the Beltway bandits (defense and other contractors), and corporate holders of official monopolies (such as "intellectual property").
To which I would only add Congressmen, since they're virtually guaranteed reelection and may therefore be deemed part of the permanent government and not mere democratic contingencies. Note that the Presidency is excluded for being a dependency of the electorate, a relic of democracy, an amateur and a temp, and too minutely constrained by public opinion and overexposure in the media to have significant power.
I rather like this clip too, in which Posner explains that Leftism is a non-theistic religious movement, which is to say, it is driven by irrational and moralistic passions: https://www.youtube.com/watch?v=jYa5y8IkUMk This is why Moldbug denominated our ruling class "the Cathedral." It is the secular church of Leftism, which happens now to rule us. The problem is that all moral thought is irrational, a function of the passions and tastes (including the taste for religion), not of logic. Therefore argumentation does not work in this realm. Propaganda works. Appeals to emotion work. And, as always, the display of power is an excellent form of emotive propaganda. The Left has the power. Moreover, only those whose moral tastes appear sufficiently Leftist are permitted to form the next generation of the power elite, the priests of the Cathedral. Since the Reformation, at the latest, the Left always has outrun the right in mastery of propaganda--hardly surprising given that the essence of propaganda is mendacity and the very foundation of leftism (human equality) is a lie. When you're naturally predisposed to idealism (what I call lies), when your thought process is inherently delusional, when you instinctively retreat from the "is" and desperately embrace the "ought," when you are your first and most fanatical convert---with such a psychological character you are a natural, even an involuntary, propagandist. Socialism: the party of involuntary propaganda. Of the right, though, it may be said that "its nature is subdued to what it works in, like the dyer's hand." And what it works in is reality, not the seductive fantasia of ideal forms. But, the communication of reality is generally perceived as quite crude and rebarbative propaganda--keen apprehension is required to notice that it's not propaganda at all, since it's the awful truth (without the saving grace of Cary Grant & co).
How can the right attain power in such a system as ours? It cannot. Only the ideas most attractive to intellectuals (which are mainly a matter of social status games) win the competition for preeminence, and thence that for political application, in our system. Not the most truthful ideas, not the most useful in any utilitarian sense, but those ideas most attractive to this audience prevail. These ideas define the Overton window. The intellectuals then repackage their favored notions in a form that will appeal to hoi polloi (the manufacture of consent). Big business and permanent government then determine how to action the ideas. Where, you may wonder, is the "Right" in this process? Watching. Sometimes complaining. Then submitting. Finally, forgetting that the given idea--first theoretical, then novel, now simply reality--was Leftist in the first place. Its reality inclines the Right even to defend it against any new changes. The "Right" exists for two reasons: to legitimize the claim that we live in a two party democracy, and to provide political entertainment and distraction from reality.
The only avenue for the Right to attain power is a military coup. The only chance of this happening involves some decidedly unattractive preconditions, like Brezhnevite stagnation for at least a generation or some form of extreme crisis, like nuclear war. The former option, though it looks increasingly likely, may yet be evaded by major technological advances. But, does the Right nevertheless have some use today? Well, it might slow the Leftist advance. Another possibility: sustain a level of dissident intellectual discourse that is high enough to tempt the ruling Leftists occasionally to purloin a useful idea (eg, Carter's administration did considerable deregulation based on intelligent Rightist analysis). Such discourse might benefit those nations that attempt to buck the American example (like Singapore or potentially China or Russia). Highly successful Rightist regimes overseas may provide a counterexample to our Leftist morass just as we formed a counterexample to the Soviet morass and catalyzed its transition to "an improved infancy." A third use might be to prepare for a Leftist collapse, perhaps already an inevitable fate for the West--to have ready to hand an intelligent, considered, current plan to form a Rightist regime on the mouldering ruins of yet another Leftist failure.
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