The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Nicely Worded Lawyer-ese That Really Hacks Me Off

Posted on | November 10, 2011 | 24 Comments

by Smitty

Over at Volokh:

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained.

Why on earth are the 9th and 10th Amendments, the Bill of Rights, permitted to be overruled, then? This whole century of Progressivism has been an over-ruling of Article V in the Constitution, and conservatives should be thoroughly hacked off about it. Ken Cuccinelli, at least, gets this.

It occurred to me while driving to Philadelphia this afternoon that, for all #OccupyResoluteDesk is into spreading the wealth, Obama and the rest of the Ruling Class are not interested in sharing any power. Quite the opposite. All the power continues to drain into DC.

Sadly, precious few of even the GOP candidates are discussing the problem in any way that that will amount to a fart in a thunderstorm. Last night’s GOP economics debate substantially featured candidates talking about stylistic changes to the tired old Progressive Fail Train.

Our Constitution is the answer. That Constitution outlines a Federalist machete which, wielded judiciously, would hack the jungle back to something non-stifling. The Enumerated Powers are the guide. But doing that means the lawyers have to get on board with liberty, and quit buying into decades of Postmodern crap disguised as legal opinion. Attempting to turn Progressive sophistries into Constitutional truth by careful degrees would have made an interesting intellectual exercise, if it wasn’t so flipping expensive and difficult to turn around. Overrule precedents? Why, yes: yes, we should. Every opinion that doesn’t maximize liberty is an enemy of liberty.

One recent example of the kind of cloudy thinking that pervades our day comes from the GOP Economics Debate. One moderator (and props to CNBC for keeping things moving a relatively substantive) asked Ron Paul where the ‘government jobs’ would go if we started whacking whole agencies. Let us draw a distinction. Let us call a ‘job’ a private sector billet for a worker, which has a positive economic input. Let us call a government billet a ‘position’, and quit conflating jobs that add to the economy with positions that, necessarily, detract from the economy. The public has tolerated too much handwaving along these lines, too much anti-liberty thinking from lawyers, just because they came from Hale or Yarvard. I am not impressed.

Update: linke at The Camp of the Saints.


24 Responses to “Nicely Worded Lawyer-ese That Really Hacks Me Off”

  1. Anonymous
    November 10th, 2011 @ 8:04 am

    I think the reluctance to overturn precedence is a generally desirable attitude for a Supreme Court Justice to have.  However, I think that we’ve accumulated a lot of really bad precedents.  Maybe not as awful as Dred Scott or Plessy, but still pretty bad.

  2. elaine
    November 10th, 2011 @ 8:11 am

    Let us draw a distinction. Let us call a ‘job’ a private sector billet
    for a worker, which has a positive economic input. Let us call a
    government billet a ‘position’, and quit conflating jobs that add to the
    economy with positions that, necessarily, detract from the economy.

    THANK YOU!  I’ve been making this point in personal conversations for the past few weeks.  Government doesn’t produce anything of value.  It doesn’t add to the economy.  A position — as you put it — there doesn’t create any wealth for society in general.

    Every dollar in taxes taken from citizens to pay a government worker’s wage is an opportunity stolen from the private sector to create more wealth for everyone.

    Given how much more more public sector employees make, compared to workers in the private sector, one government billet steals at least two private sector jobs from the rest of us.

    Think about that.  For every government job “created or saved,” we’re losing twice as many (if not more) private sector jobs.

    You wonder why the jobs outlook isn’t getting any better?  It’s because the only jobs the Obama administration has seen created are in the public sector.  Until that changes, we’re going to continue to see high unemployment in the rest of the country, while DC still experiences its boom.

  3. AngelaTC
    November 10th, 2011 @ 8:47 am

    “The modern Supreme Court is reluctant to directly overrule precedents,…”
    In general, I think it’s the liberal courts that don’t hesitate to overturn precedents. They happily legislate from their bench.

    One of the problems with the Constitution is that it doesn’t put limits or assign duties to the SCOTUS.  As a result, we have ended up with rulings that say, “Yes, this is technically a violation of the constitution, but we’re going to allow it because it is intended to keep people safe.”   (And of course, if I say that’s a bad precedent, obviously I support anarchy, I hate children, and am a dirty hippie ACLU lovin’  liberal. ) 

  4. ThePaganTemple
    November 10th, 2011 @ 9:09 am

    I still say there should be an even number of justices. These five-four decisions are killing us. An even number would require a majority of two, which would put the matter to rest for at least a little while. But this business of being reluctant to overturn precedent is absurd. If you really are a constitutional conservative jurist, why in the hell should you be concerned about overturning an obviously odious decision like Roe? The people need to start exercising their due rights to impeach some of these bastards. If she wasn’t such an old hag and practically at death’s door, I’d say start with that old bitch that said we should look at European law when we make our decisions. To hell with it start with her anyway, the older and more decrepit she gets the more odious she’s likely to be until she melts into a pile of vile, stinking shit.

  5. smitty
    November 10th, 2011 @ 9:38 am

    The flaw I see in your thinking is that you assume the SCOTUS seeks justice and would contend internally until at least getting close to justice.
    With idealogues like Sotomayor and Kagan, all that is necessary is to run out the clock, and wait for rational people to run out of gas.
    Your even-numbered SCOTUS would deadlock on a nearly case-by-case basis, I fear.

  6. smitty
    November 10th, 2011 @ 9:39 am

    And thank you for a great comment. Keeps the blogger blogging.

  7. McGehee
    November 10th, 2011 @ 9:42 am

    There are occasions when SCOTUS has an even number of justices, such as a vacancy that hasn’t yet been filled, or a recusal.

    In the event of a tie the lower court’s ruling stands — even if it’s the Ninth Circuit’s finding that since sea otters are a form of weasel and since sea otters are endangered, then the Endangered Species Act applies to all weasels. Including Anthony Weiner.

    I for one wouldn’t mind that one being overturned 5-4.

  8. Tennwriter
    November 10th, 2011 @ 9:49 am

    Roe v. Wade is worse than Dred Scott.  And Kelo v. New London stinketh.

    You’re mostly right, Scary.

  9. Tennwriter
    November 10th, 2011 @ 9:51 am

    Perhaps you need to get hacked off more often, Smitty. This was a thing of beauty.

  10. ThePaganTemple
    November 10th, 2011 @ 9:55 am

    You say that like it’s a bad thing. It’s precisely what I want. They need more limits on their power. Right now they have practically none. For every bad law they fail to overturn they’ll fail to overturn at least twice as many good ones is the way I look at it.

  11. ThePaganTemple
    November 10th, 2011 @ 9:56 am

    It wouldn’t be a perfect solution, no, but it would be better than what we have now, on balance.

  12. Anonymous
    November 10th, 2011 @ 10:13 am

    Depends on the precedent and what it’s about.  I agree with most of the substance, though I don’t think an even number of Justices would make much difference.

    One critical aspect of the Progressive mindset is to make changes without understanding the consequences and effects of the changes.  The Conservative is more likely to realize that we just aren’t smart enough to figure it all out, and the best course of action might be to do nothing.

    Before you imagine that I did, note that I didn’t say that we shouldn’t throw out lousy precedents.  But there are different sorts of precedents.  Not all are Constitutional interpretations:  common law, interpretation of statute.  Having the Court decide in your favor isn’t necessarily any better in a procedural sense than deciding against you, and often, clarifications are better handled by the political branches, who at least have some accountability.

  13. Ian Vaughan
    November 10th, 2011 @ 12:27 pm

    Further to Elaine’s comment, having each government ‘worker’ cost two., (or more), private sector jobs has a high economic cost too.  We not only lose the two jobs, we also lose the taxes that those two workers would pay, as well the taxes that would be generated by the ‘worker’ if they were in the private sector.  Government ‘workers’ DO NOT PAY TAXES, they merely rebate some of the taxes paid TOO them. 

    All Government’ jobs’ should be paid ‘tax free’ as the current system merely creates ‘jobs’ at the tax department, allowing the ‘workers’ to fondle the same money three times. 

  14. ThePaganTemple
    November 10th, 2011 @ 12:51 pm

    An even number of justices would make a hell of a lot of difference. Think about the recent state court decisions concerning Obamacare. There’s one decision that will be making its way to the court that found the individual mandate to be unconstitutional. Who knows how that will turn out. The whole decision probably rests on how Kennedy votes. With an even number of jurist, for example ten, before the state court decision can be thrown out, it would have to happen by a decision of 6-4, not 5-4. That makes it far less likely that the state decision would be thrown out, which means it would be the end of Obamacare to all practical purposes.

    Granted, it wouldn’t always work out good, but since most laws that make their way to the courts tend to be overreaches anyway, most of them that are challenged probably need to be thrown out by the states, and an even number on the Supreme Court makes it all the more likely state court decisions will not be overturned.

  15. elaine
    November 10th, 2011 @ 1:02 pm

    Politicians wring their hands over the loss of government positions, but honestly, if we had a good (or recovering) economy where plenty of jobs are being created due to lower taxes encouraging growth, then those ex-federal employees could find jobs elsewhere.  Granted, it wouldn’t necessarily be the easy work they’re used to, but at least they’d finally be productive…

    These are the kinds of points fiscal conservatives on our side need to be making, not only in debates, but also whenever they give an interview or write an op-ed article or Facebook post.

    Every dollar sent to the federal government is an opportunity to create wealth lost forever.

  16. Anonymous
    November 10th, 2011 @ 2:19 pm

    The problem is that politicians and many “economists” think of government as if it were a productive part of the economy. Government is overhead nothing more, some of it necessary such as roads, some law enforcement and national security most of it is rather more like the massive HR departments that have risen up in every business of any size.

  17. Anonymous
    November 10th, 2011 @ 2:27 pm

    An excellent analysis, I would add that the increased number of federal workers eventually become federal retirees.

  18. Enumerating Prudence « The Camp Of The Saints
    November 10th, 2011 @ 2:45 pm

    […] a very serious-minded posting, Smitty offers his thoughts on the practice of stare […]

  19. DaveO
    November 10th, 2011 @ 3:41 pm

    TPT: if the Judicial Branch is to be the 3d Leg of Government, it can’t be in perpetual deadlock.

  20. ThePaganTemple
    November 10th, 2011 @ 3:51 pm

    The whole purpose of the American style of government is to limit it as much as possible, and right now the judicial branch has practically no limitations whatsoever. That has to change one way or another. In fact, that’s one of many reasons I’ve been seriously giving Newt a second look.

  21. Anonymous
    November 10th, 2011 @ 4:00 pm

    But they still make a decision, either way.  And generally, they need to.

    My favorite judicial reform is to remove lifetime Justice appointments in favor of 18 year terms.  The Justices retain most of their political independence, but the makeup of the Court remains fresher and more likely to be in tune with the body politic.  Also, each Presidential term would be guaranteed 2 appointments each (with the possibility of more due to death or retirement).

  22. rob in katy
    November 10th, 2011 @ 5:36 pm

    A true job is one that eventually produces something of worth to a viable market. Whoa, I just wiped out EPA, DOE, HHS, DOE, ATF and an endless list of others.

  23. The Wondering Jew
    November 10th, 2011 @ 6:22 pm

    Agreed– Bravo, Smitty!

  24. ThePaganTemple
    November 10th, 2011 @ 6:45 pm

    Are you kidding? That’s a horrible idea.