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Equality Before the Law vs Material Equality


“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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Angela Corey vs Alan Dershowitiz


From Angela Corey’s Checkered Past by Ian Tuttle in National Review:

In June 2012, Alan Dershowitz, a well-known defense attorney who has been a professor at Harvard Law School for nearly half a century, criticized Corey for her affidavit in the Zimmerman case. Making use of a quirk of Florida law that gives prosecutors, for any case except first-degree murder, the option of filing an affidavit with the judge instead of going to a grand jury, Corey filed an affidavit that, according to Dershowitz, “willfully and deliberately omitted” crucial exculpatory evidence: namely, that Trayvon Martin was beating George Zimmerman bloody at the time of the fatal gunshot. So Corey avoided a grand jury, where her case likely would not have held water, and then withheld evidence in her affidavit to the judge. “It was a perjurious affidavit,” Dershowitz tells me, and that comes with serious consequences: “Submitting a false affidavit is grounds for disbarment.”

Shortly after Dershowitz’s criticisms, Harvard Law School’s dean’s office received a phone call. When the dean refused to pick up, Angela Corey spent a half hour demanding of an office-of-communications employee that Dershowitz be fired. According to Dershowitz, Corey threatened to sue Harvard, to try to get him disbarred, and also to sue him for slander and libel. Corey also told the communications employee that she had assigned a state investigator — an employee of the State of Florida, that is — to investigate Dershowitz. “That’s an abuse of office right there,” Dershowitz says.

What happened in the weeks and months that followed was instructive. Dershowitz says that he was flooded with correspondence from people telling him that this is Corey’s well-known M.O. He says numerous sources — lawyers who had sparred with Corey in the courtroom, lawyers who had worked with and for her, and even multiple judges — informed him that Corey has a history of vigorously attacking any and all who criticize her. But it’s worse than that: Correspondents told him that Corey has a history of overcharging and withholding evidence.

The Zimmerman trial is a clear case of the former and a probable case of the latter. Zimmerman was charged with second-degree murder, also known as “depraved mind” murder. The case law for that charge, an attorney who has worked in criminal prosecution outside Florida tells me, is near-unanimous: It almost never applies to one-on-one encounters. Second-degree murder is the madman who fires indiscriminately into a crowd or unlocks the lions’ cage at the zoo. “Nothing in the facts of this case approaches that.” Which Angela Corey, a veteran prosecutor, should have known, and a grand jury would have told her. In fact, both the initial police investigation and the original state attorney in charge of the case had determined exactly that: There was no evidence of any crime, much less second-degree murder

But that did not stop Corey from zealously overcharging and — the facts suggest — withholding evidence to ensure that that charge stuck.


Unfortunately public office attracts such people.  A true liberal should be outraged.

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Logic vs Partisanship

As much as we could wish otherwise the courts do often seem to vote in a political manner.  The president’s power to appoint justices for life has impact far beyond his term in office.

The SCOTUS review of Obama Care is inciting claims of a partisan court.  Some question the legitimacy of the courts, but that seems to depend which view the courts uphold.

Charles Krauthammer questioned the legitimacy concerns in Obama vs SCOTUS in The National Review, 4/4/12.


Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare, because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the Court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is fourDemocrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

HKO comments:

I am certainly no constitutional lawyer or scholar, but there certainly seems to be a gap between how the constitution reads and how we want it to read.  This battle, regardless of how the Supreme Court rules, highlights a fundamental difference between the two parties in the balance of power between the individual and the state.

Over time there is a vacillation between liberal and conservative periods.  During more liberal periods the courts have expanded the power of the state. During more conservative periods there may be less rulings expanding the power of the state, but the precedence from the liberal periods are most often left in tact.   Thus the dynamic over time is towards a more empowered state.

There are certainly rulings where a justice’s decision may defy the partisan labels.

Over time the ideas that we use to discern political labels have also changed. Brandeis, considered a very liberal judge in history, often ruled against the state in matters of individual rights and feared the “bigness” of government  as much as he feared the negative impact that the “bigness” of large corporations were having on the society.

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Of Wheat and Health Care

Investor’s Business Daily Thomas Sowell writes Obscure Court Decision Gives Government Sweeping Power, 3/26/12.


Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’ power to regulate interstate commerce.

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm.

The 10th Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the 10th Amendment’s limitations on the powers of the federal government virtually disappeared.

HKO comments:

When you go to the polls next election, remember that the president’s impact on our lives through his court appointments drags out far beyond the attention span of his media fans and sychophants.

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Hate Crime Failure

The thinking behind making hate crimes a distinct but additional offense is that the violence perpetrated extends to more than just the direct victim.  Criminals who commit act of violence because of a victim’s race, religion or sex attempt to have an impact on the wider group though the direct victim may be a single person.

But because of the political nature of of which groups are to be considered victims, the idea is fraught with unintended and undesirable consequences.  And underlying this intention is the invasion of legal judgement into a person’s thought.    If I physically and  viciously attack a gay or a minority it is not always a hate crime. It can only be discerned to be  a hate crime if I have spoken or written of my disdain for their race or sexual preference or otherwise somehow indicated their ethnic, religious, or sexual status was the expressed reason for my attack.  As Jeff Jacoby writes in  On trial at Rutgers: hate crime or thought crime?:

But even if the worst rumors were true, that wouldn’t change the great flaw of hate crime prosecutions. The criminal justice system should not concern itself with bad thoughts and pernicious attitudes, but with bad behavior and pernicious harms. The man who breaks your jaw because you are black or gay or Hindu should be punished as severely as the man who breaks it because you are socialist or a Yankees fan — or just because he’s a thug seeking a thrill.

The flood of hate crime laws passed in recent years has added to prosecutors’ leverage, but has it made society more just? “Proponents of the original bias crime laws said they meant to go after murderous plots by members of . . . hard-core hate groups,’’ writes New York University law professor James Jacobs. “Now, bias crime prosecutions most often involve young defendants, frequently mixed-up teenagers, who commit low-level offenses like criminal mischief and simple assault, typically escalating from spontaneous altercations.’’

Tyler Clementi’s suicide was a tragedy. But threatening a 10-year sentence for his roommate’s odious stunt with a webcam has far more to do with politics than with justice. And it reminds us, or should, that prosecuting people for their opinions is not the hallmark of a free society.