Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Thursday, March 7, 2013

"The Latitude is Complete"

 
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.

Monday, December 31, 2012

The Left Unleashed--Moldbug Seeks Redress

The mad genius of the alt-right thinkers (Mencius Moldbug of Unqualified Reservations) nominates the American ruling class "The Cathedral." It comprises, by order of rank, the professoriate of the elite universities, the civil service (including our life-tenured Congress and Supreme Court), the media, the entertainment industry, and public school teachers. The op-ed linked above, by a law professor at an elite law school, is convoluted almost to the point of contradiction and stands as an absolute paean to the current Cathedral--truly one of the dumbest articles, substantively, I've seen at the NY Times. Also, not coincidentally, one of purest ideologically, that is, one of the most brilliant in terms of form and structure--which is impressive, since editorial writers, especially on the left, are primarily engaged in a status game in which the purest theologically, I mean, ideologically wins the prize. This game can be rather creative given that there are no rules proscribing flights of fantasy or violations of the reality principle. The overarching stupidity here, of course, is that he advocates freedom from the constitution in the same article in which he (accurately) boasts that we have frequently, and by implication ever more frequently, violated its provisions throughout our history. I also like the strategic omission of any mention of the provision made for amending the Constitution, a provision many times put to use. It might be interesting, though, to attempt an aesthetic appreciation of this piece, exemplary decadent art object that it is. 
 
As a counterstrike to this Leftist insanity, here's a good intro to Moldbuggian thought: http://unqualified-reservations.blogspot.com/2009/01/gentle-introduction-to-unqualified.html  And here are my selections from the highly interesting Moldbug on the nature of the Cathedral and his mission to proselytize the shepherds (the boldface is mine):

 
 
 One way to elect a new people is to import them, of course. For example, to put it bluntly, the Democratic Party has captured California, once a Republican stronghold, by importing arbitrary numbers of Mexicans. Indeed the Third World is stocked with literally billions of potential Democrats, just waiting to come to America so that Washington can buy their votes. Inner Party functionaries cackle gleefully over this achievement. (BTW, isn't that photo of Frank Rich amazing? Doesn't it just radiate pure power and contempt? Henry VIII would probably have asked the painter to make him look less like Xerxes, King of Kings.)

But this act of brutal Machiavellian thug politics, larded as usual with the most gushing of sentimental platitudes, is picayune next to the ordinary practice of democratic governments: to elect a new people by re-educating the children of the old. In the long run, power in a democracy belongs to its information organs: the press, the schools, and most of all the universities, who mint the thoughts that the others plant. For simplicity, we have dubbed this complex the Cathedral.
The Cathedral is a feedback loop. It has no center, no master planners. Everyone, even the Sulzbergers, is replaceable. In a democracy, mass opinion creates power. Power diverts funds to the manufacturers of opinion, who manufacture more, etc. Not a terribly complicated cycle.

This feedback loop generates a playing field on which the most competitive ideas are not those which best correspond to reality, but those which produce the strongest feedback. The Cathedral is constantly electing a new people who (a) support the Cathedral more and more, and (b) support a political system which makes the Cathedral stronger and stronger.

For example, libertarian policies are not competitive in the Cathedral, because libertarianism minimizes employment for public-policy experts. Thus we would expect libertarians to come in two flavors: the intellectually marginalized, and the intellectually compromised...
 
What we need is a sort of counter-Cathedral: an institution which is actually more trustworthy than the university system. The universities are the brain of USG, and the best way to kill anything is to shoot it in the head.

To be right when the Cathedral is wrong is to demonstrate that we live under a system of government which is bound together by the same glue that held up Communism: lies. You do not need a triple-digit IQ to know that a regime held up by lies is doomed. You also do not need a triple-digit IQ to help bring down a doomed regime. Everyone will volunteer for that job. It's as much fun as anything in the world.
 
Solely for the purpose of discussion, let's call this counter-Cathedral Resartus - from Carlyle's great novel, Sartor Resartus (The Tailor Reclothed).

The thesis of Resartus is that the marketplace of ideas, free and blossoming as it may seem, is or at least may be infected with lies. These lies all have one thing in common: they are related to the policies of modern democratic governments. Misinformation justifies misgovernment; misgovernment subsidizes misinformation. This is our feedback loop.

On the other hand, it's clear that modern democratic governments are doing many things right. Perhaps in all circumstances they are doing the best they can. Perhaps there is no misinformation at all. The hypothesis that such feedback loops can form is not a demonstration that they exist.

Therefore, the mission of Resartus is to establish, using that crowdsourced wiki-power we are all familiar with, the truth on every dubious subject. Perhaps the truth will turn out to be the official story, in which case we can be happy.

The two sites today which are most like Resartus are Climate Audit and Gene Expression. Both of these are, in my humble opinion, scientific milestones. CA's subject is climatology; GNXP's subject is human biodiversity.

Friday, July 1, 2011

One of My Favorite Laws--

Properly demolished in a law review article by a UPenn law professor (and formerly a practicing neurologist with a Harvard MD--which ought to indicate a still more comprehensive knowledge and authority on this subject):
This is the only law review article I've ever seen that is both substantively consequential in its argument and a demonstration of moral courage. The vast majority manifest neither quality. I'm betting we won't hear tell of this in the NY Times. To them disparate impact rules are a talismanic solution to the overwhelming racism that explains all black and mexican social pathologies. Considering what happened to Larry Summers and Thomas Watson for similar arguments, this lady ought to prepare for a return to neurology.

Sunday, October 31, 2010

Union Blackmail and Corruption

I especially like the last line of the article. Public sector unions are holding the country hostage. They ought to be outlawed. They represent an intolerable encroachment upon the integrity of a democratic system of government.

Sunday, April 11, 2010

Compare and Contrast

I think the following quotes are a useful summary of the freedoms won and lost by the American people in the course of our history.
From an article in Reason magazine by David Boaz, called Up From Slavery:
"Brink Lindsey talks of an "implicit libertarian synthesis" in American politics today in his book The Age of Abundance. He argued in 2007:
Nevertheless, the fact is that American society today is considerably more libertarian than it was a generation or two ago. Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. Of course there are obvious counterexamples, but on the whole it seems clear that cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver."
Juxtapose the above to this perspective, which has, to my sense, considerable merit:
"Jacob Hornberger of the Future of Freedom Foundation writes about the decline of freedom in America:
First of all, let’s talk about the economic system that existed in the United States from the inception of the nation to the latter part of the 19th century. The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.There was no federal department of labor, agriculture, commerce, education, energy, health and human services, or homeland security."
 It seems that we transitioned from positive governmental and societal discrimination against large segments of our society to constraining the freedoms of all by means of taxes and regulations--using as an excuse for these universal constraints the past injustices imposed upon the repressed groups. Of course, the disconnect in this line of implicit reasoning is that these modern constraints were not necessary to achieve the equality of opportunity previously lacking. They're just an excuse for socialism and elitist overreach.

Tuesday, March 9, 2010

The Legal Morass

This guy does a great job of defining the problems afflicting our system; the solutions he proposes are more questionable. The risk he invites is transforming our system from one abused by litigious individuals and aggressive tort lawyers to one that may be abused by the authority figures to whom he would shift power. At this point, I suspect it is worth the risk; it seems time for the pendulum to swing back (and this would involve a retracing of our legal history to some extent).
A vital point, lost on many people, is the pervasive impact of the mere threat of lawsuits in our time. Even where the courts hold the line on imposing the theoretical standard of "reasonable action under the circumstances," trigger-happy plaintiffs and attorneys circumscribe our freedoms ever more narrowly with each threat they make. In other words, the people behind these threats are engaged in de facto legislation for the rest of us--they superimpose a suffocating layer of unwritten laws on the endless millions of written ones.
Another key point: the laws are far too extensive for anyone to understand--and many are also too complicated for anyone but professionals to understand. This is not necessary--in fact, it is an invitation to tyranny. If the people do not know the laws--and they do not--then the state can arbitrarily fine or imprison anyone it chooses. The definition of tyranny is unchecked executive power. And, be it noted, our hives of bureaucrats exercise far more executive power than the President.

Wednesday, February 10, 2010

Another Country

The first article is a bit long, but exceptionally well told and the basis of the follow-on pieces.
The morally bankrupt prosecutor attempts (rather ineffectually) to respond to the evidence against him:
Response to the prosecutor's defense: 
The guilty, negligent Governor (Rick Perry) engages in corrupt practices to cover up his malfeasance:
Now, tell me, what was the underlying cause of this result? I would call it lack of accountability among the prosecutorial class and their allies. We ought to consider a murder trial in which they stand as defendants.
 
 
I support the death penalty. To justify it, though, the trial process must be clean, competent, transparent, and imbued with legal mechanisms that hold legal officers accountable for maintaining this high quality. Having achieved this level of fairness, and so reduced the odds of erroneous conviction, I am willing to accept the inevitable, yet rare, instance in which an innocent is executed. Anyone who supports the death penalty must confess that such a miscarriage of justice is an unavoidable, yet acceptable, risk.

Saturday, November 14, 2009

The Welfare Graph

Why the poor work so little:
From a graph like that you might think that there aren't any poor people in this country. In any case, it would appear that the welfare machine does not allow too many families with children to slip into poverty--and not a single senior. For poor women, a child produces a shower of government largesse for herself plus free food, education, medical care, etc for her child. Result: no sense of individual responsibility and rampant single motherhood.

But, the socialists presume that the world was an intolerably cruel place before all these corrupting handouts were instituted.  It was not. People adapt to their circumstances. They had other buffers to guard against misfortune and deprivation: responsibility, foresight, fortitude, reasonable expectations, religion, family, private charity. All of these natural buffers, cultivated and strengthened and refined by our civilization for centuries, have been badly undermined by the massive socialist-bureaucratic leveling machine. The only real comfort at this point is that the text of our Constitution has been so little altered in the course of the revolution wrought by FDR. But, still, isn't it strange that the government should have suffered such gross alterations as to be rendered unrecognizable--without changing the Constitution? The letter remains, but the spirit is gone.

Sunday, October 4, 2009

Criminal Psychology

The competition in Europe today is to determine which nation is the most passive/submissive. The Muslims think this fits well with their competition to determine who is the most dominant.

Thursday, September 10, 2009

Indulgences

The problem is not just lax sentencing, but the fact that the legal system evolved with British citizens in mind. These terrorists are citizens of the Caliphate of their fantasies.  I believe the British will adopt harsher measures in proportion to their experience of terrorist incidents--they have only seen a single, relatively modest, incident thus far.

Tuesday, August 11, 2009

An Old Problem

The arm of the law seems to sweep a bit wide here.
Largely, I agree with their prescription--except that I would leave the information on the internet (esp for serious offenders), though the trade-off is that some will respond by going underground. Also, more of the serious cases ought to be given swimming lessons, sharks being the preferred instructors.


Check out the story in the first few paragraphs:
Further on it notes that in 13 states public urination puts you on the sex offender registry--do you know a male who shouldn't be on such a registry? Who the hell writes these laws? 

Sunday, August 9, 2009

The Left and Reality: Another Missed Connection

Apparently 10-20% of blacks and 2-3% of higher IQ races are exempt from execution by virtue of extreme stupidity. So, according to the socialist regressives, IQ tests only count when they benefit minorities. Otherwise, they are clearly baseless pseudo-science and racist to boot.

Friday, June 5, 2009

A Court-Jester

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice (Sandra Day) O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure that I agree with the statement. I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."  Sonia Sotomayor
 
The last sentence, of course, is asinine. However, the lead-up is common sense, even if jurists rarely admit to this reality. But, it's the narrow, leftist, group-identity obsessed version of the common sense notion that different experiences lead to different opinions. A broader version would note that people of the same sex and ethnicity may also have highly divergent life experiences that help to form different bases for their opinions. She also discounts the value of intellect and professional competence, though I admit these are generally of less consequence in the political rulings with which she seems primarily to be concerned.
 
The Supreme Court's decisions are either political or technical. Disagreements usually arise on the political questions, howsoever they may be disguised behind more or less clever facades of euphemistic rhetoric and irrelevant technicalities.
 
I think other parts of the speech from which this quote was pulled are equally disturbing. Elsewhere, she basically makes an argument (which I might add is poorly constructed as a matter of pure logic and full of holes even half-wits can see) for imposing ethnically-based quotas to determine who should sit on the federal bench--and, presumably, by extension, to determine who should obtain all other government offices. Never mind who is actually qualified on individual merit for such appointments--for every uptick in the Hispanic percentage of the population, more Hispanic judges must be appointed. This consists with her ruling against the New Haven firefighters, whose system of promotion based on individual achievement she curtly tossed out the window: apparently, in promotions, color is more important than competence. In short, she has limited faith in meritocracy and blithely privileges group rights over individual rights--thus undermining two of the essential principles upon which this country is founded--and on the application of which principles we had been making constant improvements until the socialist breakthrough into the mainstream in the 1960s.
 
Politically, she's a member of the party of resentment.
Intellectually, she's too mediocre to inflict much influence on the Supreme Court beyond that granted by her single vote.

Tuesday, June 2, 2009

The Left and Reality: An Untenable Connection

http://www.youtube.com/watch?v=fwIQmWSh6ds

Apparently Obama believes that because he possesses rhetorical skills superior to Bush's he can juke the public and convince them that his plan is a move toward a constitutional detention regime. Renaming the process does not constitutionalize it. Maddow does a fine job breaking down into digestible pieces Obama's inconsistencies.
 
This is a good explication of the dilemma Obama has inherited (watch from 2:55 on):
This is the actual qoute from Justice Brandeis that the professor attempted to paraphrase:
 
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
 
I think this warning applies to Bush and to Obama. Of course, the latter, as a former "professor" of constitutional law, ought really to know better. And maybe he would, if he had actually been a professor instead of the beneficiary of a sinecure with the title of "professor." What Obama does not mention is the reality of a trade-off here. Do you want to play nice and adhere to the constitution or do you want to risk some blowback from deporting and potentially releasing some of these guys? Like Bush, Obama wants to have it both ways. But the contours of the constitution will not succumb to inventive euphemisms.

Sunday, November 23, 2008

Safeguards against Tyranny

The recent Boumedienne opinion from the Supreme Court corrects another folly of the Bush regime: holding captive men who were suspected of being terrorists or combatants with no proof that they were such. This means that some dangerous individuals are likely to be released due to insufficient evidence against them, which is a price we can and must pay. Sometimes there is evidence that they had planned to become combatants (letters or email messages saying so, for example). Practically, it is difficult to find sufficient evidence in many cases; and a further difficulty arises in the form of evidence that may be decisive, but threatens national security if provided to the court.


However, the Bush administration's solution of arbitrarily imprisoning anyone who in their unsupervised and unaccountable opinion might pose a risk to America is not a defensible proposition--as the Supreme Court finally indicated. Without this judicial check upon executive authority we give the President the option to exercise tyrannical power. In fact, this is the very definition of tyranny: unchecked executive authority. Contra Bush, we must exchange this exacerbated risk of tyranny for the certain contingency of facing some of the released prisoners on the battlefield. Of course, a further benefit to doing justice is that a competent public relations machine will ensure that we are also seen to be doing it.

I would define my position as intelligence reinforced by skepticism, spiced with some misanthropy. I do not trust our government; nor do I trust the people running it. I never have and I never will. Consequently, I favor the imposition of transparency and accountability upon government actions and agents whenever this is practical.
Some might reject the Court's decision as too charitable to our enemies. But, in terms of altruistic sacrifice for our principles--is it simply altruism? By flaunting its brutality and injustices, the Bush administration encourages anti-American sentiment around the world, and even at home. This costs lives, and not only money and power. Apparently, the critics adopt a more cynical perspective on this issue and assume that our actions and our image in the world have no impact upon this anti-American sentiment. I am not so pessimistic as to believe that we have no control over international perceptions of America. And such perceptions, among our allies and our enemies, absolutely matter. They matter economically, militarily, politically, culturally--and their importance increases apace as the world becomes ever more interconnected and interdependent.