| « | Eternity Road Colloquium #8 |
»
|
|
Wednesday, June 13, 2007
Brakes
Among the better-known maxims of judicial thought is that "hard cases make bad law." The logic behind this aphorism was simple and clear: a "hard case" -- that is, one that counterpoises the explicit demands of the law to an isolated incident in which those demands appear to be unjust, cruel, or disproportionate -- tempts a jurist to finesse his way around the law. If he's a criminal trial judge, he might seek a rationale for not imposing the statutory sentence. If he's an appellate judge, he might be tempted to distort the facts of the case in his written opinion, so that he could slide around the unambiguous dictates of the relevant statutes. Either way, he wouldn't just be "making" law; he'd be usurping the prerogatives of the legislature that passed the law. No matter how good his intentions, he'd be corrupting the constitutional system by seizing a power no judge was ever granted.
Yet we should reflect upon the judge's intentions. In the usual "hard case," most of us would be moved to do as he did, or something akin to it. That doesn't make it right, of course, but it does gauge the power of one's good intentions to overwhelm his fidelity to his sworn public duties. We must ask: if it's wrong for the judge to redress an injustice by seizing legislative powers never granted him, then what remedy exists for such situations?
Actually, there are several:
- The prosecutor's office could decline to file for indictment;
- Once the indictment has been granted, the prosecutor's office could offer a plea bargain of lenient character;
- The jury could exercise its nullification privilege and acquit the defendant;
- The legislature could change or repeal the law, perhaps with retroactive effect.
These remedies share a common virtue: they respect the law as it is written and leave the constitutional separation of powers uncorrupted. They deal with the "hard case" as an isolated incident, declining the opportunity to establish a noxious precedent that would pollute the handling of untold later not-so-hard cases. They exercise only those powers expressly granted to the persons chosen to wield them.
At a more abstract level, we might unite them thus: they honor the supreme importance of the written law as a brake on human willfulness.
Men have done more evil, and have wreaked more ruin, out of misguided good intentions than from any other impetus. In his classic novel Starship Troopers, Robert A. Heinlein, in discussing the treatment of "juvenile delinquents," a term he showers with scorn, notes that adults nearly always act from high-seeming and high-sounding motives, regardless of the subsequent objective effects of their decisions. This contention is well supported by the historical record, most particularly by the record of governmental folly.
The brightest of us is only correct in his judgments about half the time -- and that's if he's wise enough to refrain from declaiming on things outside his zone of expertise. Abraham Lincoln once said that if he could be right as much as 75% of the time, he would have attained the pinnacle of all his ambitions. After leaving the White House, Theodore Roosevelt assessed his own record as no more than 55% right. Albert Einstein, in speaking of the error that led to his static-universe model, commented wryly that no man, however brilliant, is ever safe from the most appalling blunders.
The highest achievement of American political genius is the recognition of human fallibility and the making of provisions for it in our Supreme Law, the Constitution of the United States. The foulest error to which we've succumbed is the carefree dismissal of the brakes the Constitution applies to headlong action based on precipitous judgment.
The Constitution's braking mechanisms are threefold:
- Its allocation of explicitly defined, sharply limited powers to the three branches of government;
- Its numerous prohibitions of specific governmental misdeeds;
- Its provisions for amendment.
Of these, only the third remains in force. Indeed, the hurdles the amendment clause poses to would-be rewriters of the Supreme Law have provided special-interest activists and power-hungry politicians with their motivation for abrogating the others. Two vivid examples of the consequences are on your Curmudgeon's mind today.
First, In John Stossel's column of today, he takes note of a successful public campaign to prevent an eminent-domain condemnation of a functioning shopping center in Arlington Heights, Illinois as "blighted." The would-be condemners intended to turn the 35-acre property over to Target Corp., which would then build a new shopping center on it. This was made licit by the infamous Kelo decision in which the Supreme Court blithely dismissed the "for public use" constraint of the Fifth Amendment: the brake that protects all private property in the United States from arbitrary confiscation. Had the Court ruled for Suzette Kelo and her co-litigants and against the city government of Bridgeport, Connecticut, as the Fifth Amendment to the Constitution dictates, the public campaign to save that shopping center in Arlington Heights would not have been necessary. Thousands of man-hours and hundreds of thousands of dollars would have been saved. More important, the threatened property owners, and all others who might someday find themselves similarly beleaguered, would be able to rest secure in their rights. But the decision was otherwise, to the delight of government-worshipping liberals, special-interest activists, and spendthrift politicians everywhere. The formerly firm Constitutional brake on governmental seizures of private property has been released, and no one knows what it will take to put it back in place.
Second, Eternity Road has recently been targeted by a commenter whose unvarying litany is that a "democratic society" has a "duty" to be "compassionate" toward the less well-off. This gentleman is a self-styled liberal, and seems no more clueless than average for that species. But in disregarding the Constitutional brakes on government "compassion," he, his fellow liberals, and their good intentions have unleashed the most destructive political forces in American history. They've opened the floodgates to unlimited governmental seizure of private money, property, and rights in the name of a "compassion" that has no hard definition, recognizes no objective bounds, and is nowhere in the Constitution deemed a valid basis for government action. They are unwilling to acknowledge the damage they've done -- understandable; no one likes to admit responsibility for a massive disaster -- and stoutly refuse to allow that their "informal amendments" to our fundamental law were, however well intended, illegal by the plain words of that document.
Mostly, they are not fools. Folly, pace Barbara Tuchman, is knowing better but doing worse. The majority of liberals don't know better; indeed, they refuse to know or think at all. The conclusions they reach might undermine their assumption of moral superiority and damage their self-esteem.
Among the great ironies of our contemporary political discourse is that liberals are forever accusing conservatives of being self-righteous, morally certain, and unwilling to concede the possibility of error. Liberals also routinely denounce conservatives and libertarians as evil for insisting on respect for the Constitution's brakes. But as Louis Nizer has said, when a man points a finger at another, he should remember that his other fingers are pointing at himself. Nothing could be more obvious than liberals' certainty of their moral superiority, their unquestioning faith in the rightness of their favored policies, and their utter refusal to accept any responsibility for the catastrophes those policies precipitate.
Perhaps liberals who want the privilege of spouting anti-Constitutional tripe and denouncing those who disagree should be required to drive cars with no brakes for a year or two. It might not teach them respect for the braking functions of constitutions and written law, but at the end of the experiment, we'd have fewer liberals. Fewer vocal ones, at least.
Comments
To be blunt and repetitive.. when it comes to handing out Just sentences, a justice should concern themselves with Justice, and it alone. Not mercy or compassion, not then. Those come before (indictment, plea bargain, nullification, et al), or after (legislative or pardoning), and should never come during, sentencing.
Posted by Dave on 06/13/2007 at 05:19 PMThe law should be The Law. compassion is the property of the individual.
Posted by og on 06/13/2007 at 07:37 PMGreat news--Wolcott’s on the attack again! And if the time stamps are correct, a mere 119 minutes after your post went up. He must be addicted to Eternity Road...prepare for a nice bump in traffic.
By the way, is it possible for a human being to live more than five minutes without a sense of satire, a sense of irony and a sense of humor? Mr. Wolcott would appear to be the example the demonstrates the thesis, but my, what a gray life it must be.
Posted by Wahrheit on 06/13/2007 at 07:58 PMFrancis - I just posted on the N. J. Supreme Court - seems they are upholding the right of people to own private property too. Shame on our US Supreme Court.
Posted by Beach Girl on 06/13/2007 at 08:49 PMBeing the commenter that is referred to, I want to make a couple of brief comments. First, as Francis pointed out in his last rebuttal to my previous comments, I realize fully that I am talking to an audience completely unreceptive to any statement I make. Nonetheless, I firmly believe that it is only this kind of give and take between two antithetical points of view that may ultimately lead to some “meeting of the minds”. It is the close minded attitude that the “other side” is spouting claptrap and reaffirming the preaching to the choir message that continues to drive this country apart.
One final comment. A society is of course a civilization based on law. When I speak of compassion, I’m not addressing people who have commited crimes. I’m speaking of a society that should have at its heart a concern for some common good that benefits all, requiring some movement away from the selfishness that is pervasive on the left and the right.
Posted by on 06/14/2007 at 01:49 PM"I’m speaking of a society that should have at its heart a concern for some common good that benefits all, requiring some movement away from the selfishness that is pervasive on the left and the right. “
A society such as this is domed to fail, as all socialist/communist societies fail. What you utterly fail to understand is that compassion belongs to the individual. You cannot legislate or tax people into compassion.
On the right, everyone I know already has that compassion, and exercises it in abundance. On the left, they believe it needs to be legislated so people are forced to be “compassionate”. Want to “come together”? want to “overcome selfishness”? I’m going to be doing some pro-bono work saturday morning. Care to roll up your sleeves and help?
Posted by og on 06/14/2007 at 04:44 PM“I’m speaking of a society that should have at its heart a concern for some common good that benefits all, requiring some movement away from the selfishness that is pervasive on the left and the right. “
A society such as this is domed to fail, as all socialist/communist societies fail.
Really? It would seem that the ancient Spartans and the ancient Athenians were very much concerned about what benefitted the “common good.” They were hardly communists, and they were most assuredly not failures as societies.
You’re are right though that compassion cannot be legislated. That’s what taxes are for, so people like you and me don’t have to worry about it. Your personal contributions to the good of society-painting houses, building churches, etc.-do not excuse you from the obligation you have as a citizen to address the problems that can’t be fixed with a toolbelt.
Posted by Xanthippas on 06/14/2007 at 11:20 PM"Your personal contributions to the good of society ... do not excuse you from the obligation you have as a citizen to address the problems that can’t be fixed with a toolbelt.”
What problems are we speaking of that require my personal contribution?
Posted by bernie on 06/15/2007 at 06:45 AM"Your personal contributions to the good of society-painting houses, building churches, etc.-do not excuse you from the obligation you have as a citizen to address the problems that can’t be fixed with a toolbelt.”
My tax contributions should be going to the military, to protect our country, and the country’s infrastructure. Invariably, when tax dollars are spent to “help people” they get it wrong, engender waste and corruption, and the people who are “helped” are no better off than before. Nope, that dog don’t hunt, never has, never will. And today’s Spartans.... no, wait, there ARE no spartans today. I thought you just said those societies never failed? As far as the greeks, it seems very much to me that the modern Greek attitude is as I correctly describe it: Charity is the property of the individual. Very large greek community where I live, and not once have I ever heard of a single one of them pushing for any kind of entitlement legislation. What they DO, is hold parish festivals which raise money to be distributed (FOR FREE) by people who are good at assessing need, and directing funds where the need is greatest. Individuals, coming together as a group, making INDIVIDUAL DECISIONS as to what they can afford to give and to do.
Redistribution of wealth via taxation is socialist/communist in nature, no matter what anyone says. And it always fails. Period.
Posted by og on 06/15/2007 at 07:04 AMPerhaps Ed and Xanthippas should ponder the following bit of insight:
The State has exactly one characteristic that distinguishes it from the Thursday night chess club: its agents are permitted to coerce. That is, they may use force and the threat of force to get their way, without fear of a penalty. Since politics is the process whereby a society determines what tasks the State will undertake and what conditions it will attempt to redress, it is inherently about legitimizing coercion in particular circumstances.
This is fundamental stuff. The reader who doesn’t grasp it will have difficulty with political argument until he does. So your Curmudgeon will say it once more, with feeling: The State has no other tools that the chess club lacks. To argue that a matter be put into the State’s hands is to argue that coercion is necessary to achieve some end.
Coercion—the use of force or the threat of force—is the most dramatic stance any man or organization can take toward any other: “Do as I say or I’ll kill you.” It cannot be made plainer than that.
[From this essay: http://www.eternityroad.info/index.php/weblog/single/moderation_and_labels/ ]
Anyone who argues that only government can address a particular task is actually arguing that it requires the use of violence or intimidation. If “compassion” is somehow compatible with such an approach, I woke up in the “bearded Spock” universe this morning.
Posted by Francis W. Porretto on 06/15/2007 at 08:05 AMSome yutz calling himself Wahrheit wrote:
Great news--Wolcott’s on the attack again!
And if the time stamps are correct, a mere 119 minutes after your post went up. He must be addicted to Eternity Road...prepare for a nice bump in traffic.By the way, is it possible for a human being to live more than five minutes without a sense of satire, a sense of irony and a sense of humor? Mr. Wolcott would appear to be the example the demonstrates the thesis, but my, what a gray life it must be.
Posted by on 06/15/2007 at 02:51 PMThat “yutz” is one of Eternity Road’s co-contributors, a person of wisdom, erudition, percipience, humanity, and overall discernment, Mr. Hinton. I have no doubt that if a Martian were to compare you to that “yutz,” he would conclude that you are a member of some lesser species. I am honored to call that “yutz” my friend.
But what evoked your strikingly pithy “comment,” Mr Hinton? Such thorough analysis and impassioned eloquence must surely have left you mentally exhausted. Are you an admirer of James “Go Ahead, America, Choke On Your Own Vomit, You Deserve To Die” Wolcott, perchance? What a privilege to have you among us!
Have a nice life.
Posted by Francis W. Porretto on 06/15/2007 at 04:08 PMIf only the Supreme Court would declare everything you disapprove of unconstitutional! Such an odd statement from an advocate of limited government.
Kelo didn’t create (or “make licit") this sort of situation. It’s been going on for many years, and is probably used to build new publicly financed sports facilities more often than not. (The Ballpark at Arlington being an obvious example.) If the good people of Illinois don’t want private property taken this way, they’re free to make it illegal there (e.g. by amending the state constitution), or simply vote out the administrations who do such things.
Posted by on 06/16/2007 at 08:46 PMMr. Schilling, if the Constitution of the United States does not authorize a particular act of the federal government, or forbids it to the state and local governments, that act is unConstitutional. Here is the relevant phrase from the Supreme Law:
...nor shall private property be taken for public use without just compensation.
Is it your position that this constraint allows governments to take private property for private use?
The Supreme Court, by “interpreting” the phrase “public use” out of existence, has placed the stamp of its authority on the practice of arbitrary seizure; that it had already been “going on for many years” has no bearing on its Constitutionality or whether an authoritative body had ruled it so. Finally, an advocate of limited government could not possibly hold any other position than mine, as the limits on government arise from the Constitution. I can’t use shorter words than that, sir; there aren’t any. Now quit wasting my server space and my heavily taxed patience.
Posted by Francis W. Porretto on 06/17/2007 at 06:08 AMThank you for the challenge Mr. Schilling. Until you did, I do not recall that Our Curmudgeon has ever so concisely stated the principles so greatly in need of defense.
Posted by Pascal on 06/18/2007 at 02:20 PM
