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Uninhibited Power

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from The Washington Post, On Obamacare, John Roberts helps overthrow the Constitution by George Will

excerpt:

Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress.

Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anti constitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution.”

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.

Roberts says “we must respect the role of the Legislature” but “[A] fair reading of legislation demands a fair understanding of the legislative plan.” However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.

HKO

This ruling is part of a long trend in progressivsim to counter the ideas of checks and balances and thus increase central power.

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Judicial Nihilsim

From Rand Simberg at PJ Media, How Republics Die:

As I noted on Twitter yesterday, it is entirely possible to like the outcome of a court ruling (or legislation) while being appalled at the process by which it was achieved. For instance, one can be both pro-choice and still believe (as in fact Ruth Bader Ginsburg does) that Roe v. Wade was wrongly decided.

But too many people (including, apparently and sadly, many of the justices themselves, perhaps even including the chief justice) think that the purpose of the Supreme Court is to give them things they like, like subsidies for health care, or the right to marry someone of the same sex. They care only about the results, and are utterly indifferent to the process (as we saw with the way the PPACA was passed). They believe that the ends, if sufficiently desirable, always justify the means.

But the means matter.

If, as Chief Justice Roberts implied yesterday, ambiguous laws can  be changed by judges per their divination of legislative intent, then there is no law except what the judges think it is. (I would note that in fact his reasoning was fundamentally flawed by his statement that it was Congress’s goal to simply “improve insurance markets.” I think their intent was to increase their control over our health providers, and ultimately lead us down a path to single payer. But neither of us knows.) This was not judicial activism — it was judicial nihilism.

 

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Economic Justice

from the Wall Street Journal, a remembrance of Henry Manne-   A Champion of Law Informed by Economics:

From “Bring Back the Hostile Takeover,” June 26, 2002:

Since Enron, there has been an outbreak of regulatory fever in Washington: A tide of “solutions” has sluiced from the pens of journalists and the mouths of politicians. Apparently forgotten is how Enron and other recent scandals were the direct result of regulatory and judicial efforts to stem abuses in the takeover arena 20 and more years ago. They still haven’t learned just how high the cost of interfering with salutary market forces can be.

Among current proposed guardians of executive morality are auditors, lawyers, analysts, financial intermediaries, independent directors, and government officials. But no proposal involving these actors addresses the real problem. New scandals will continue until we bring back the most powerful market mechanism for displacing bad managers: hostile takeovers.

From “For Milken, Verdict First, Trial Later,” Feb. 3, 1990:

The government wants $1.8 billion in RICO forfeitures from [Michael] Milken and his co-defendants. The government claims that Mr. Milken’s alleged securities infractions were RICO violations, which made Drexel part of a RICO “enterprise,” which means he must forfeit all his Drexel compensation. Kafka, hell; anyone for Torquemada?

Every American’s basic civil liberties are critically endangered by this hysterical, politically inspired drive to demean our financial markets and convict or at least disgrace targeted individuals. That the principal defendant has been a disruptive and unsettling innovator in the usually staid financial world makes it all the more important to be vigilant about possible abuse of fair procedures. We hardly need a regime of civil liberties to protect passive, unventuresome members of the community. Tough business competitors should get at least the same legal fairness we normally give Klansmen or crack dealers.

 

 

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A Chance for a Coalition

 

Conrad Black writes Eric Garner’s America in The National Review.

Excerpts:

African Americans must not imagine that, even though they may be the principal and most frequent victims of the police and prosecution and court and prison systems of the United States, at least on a per capita basis, they are the only group that is victimized. So, more frequently than others would imagine, are wealthy or highly placed whites, such as Martha Stewart, industrialist Alfred Taubman, Scooter Libby (former chief of staff to Vice President Dick Cheney), and the late seven-term U.S. senator Ted Stevens. Hispanics, native people, Asians who are not conspicuously wealthy, and poor whites do not fare appreciably better than African Americans, and everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-oldunstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multiethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.

HKO

The inability to see this beyond racial terms is the larger travesty.  The supervising officer at the scene was black.  Garner is very different from Brown.

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Equality Before the Law vs Material Equality

horowitz

“What makes an outlook “conservative’ is that it is rooted in an attitude about the past rather than in expectations of the future. The first principles of conservatism are propositions about human nature and the way human beings behave in a social context; about limits, and what limits make possible. This practicality, this attention to experience, to workable arrangements, explains why the conservative community can be liberal and tolerant toward its members in ways that the progressive left cannot.

In contrast to the conservative outlook, liberal and radical ideologies are about the future, about desired outcomes. The first principles of the left are the principles of politically constructing a “better world.” Throughout the modern era, the progressive future has been premised on a social contract that would make all of society’s members equal—or at least provide them with equal starting-points.”

“Post-Communist conservatism, then, begins with the principle that is written in the blood of these social experiments. “It is just not true,” as Hayek wrote in The Constitution of Liberty, “that human beings are born equal; . . . if we treat them equally, the result must be inequality in their actual position; . . . [thus] the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are, therefore, not only different but in conflict with each other.” (my emphasis)

In other words, the rights historically claimed by the left are self-contradicting and self-defeating. The regime of social justice, of which the left dreams, is a regime that by its very nature must crush individual freedom. It is not a question of choosing the right (while avoiding the wrong) political means in order to achieve the desired ends. The means are contained in the ends. The leftist revolution must crush freedom in order to achieve the social justice that it seeks. It is therefore unable to achieve even that justice. This is the totalitarian circle that cannot be squared. Socialism is not bread without freedom, as some maintain; it is neither freedom nor bread. The shades of the victims, in the endless cemetery of 20th-century revolutions, cry out from their still-fresh graves: the liberated future is a destructive illusion. To heed this cry is the beginning of a conservative point of view.”

Excerpt From: Horowitz, David. “The Black Book of the American Left.” Encounter Books, 2013-11-04. iBooks.

This material may be protected by copyright.

 

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