Category: Law, Constitution, and Jurisprudence

RESPONSE TO BRAD DELONG’S CRITICISM OF JUSTICE THOMAS’ ORIGINALISM.

( from his site )

Brad,

The purpose of originalism, textualism and the intention of strict construction, is to force well constructed legislation and to force the legislature to act to improve clarify or repair laws – precisely because this limits if not prevents legislation from the bench.

Missing from these three movements is the requirement that new legislation include the positive assertion as well as the negative prohibition thereby mandating the inclusion of the original intention and scope of the law.

The framers understood natural law and they understood legal construction. They knew what they were doing because memory of the English civil war that drove them and their ancestors (and mine) to the colony for having tried to constrain the state from returning to rule by discretion.

In theory and in practice Thomas’ assertion that the violations of legal construction by the court in the twentieth century have made the law logically I un-decidable are simply true. And members of the court differ between those that seek to restore responsibility for the quality of legislation to the government, those that feel tradition of precedent is preferable to the formal logic of strict construction, and those that wish the court to decide by discretion rather than precedent or natural law.

Now all readers ( and any public intellectual with passing economic literacy ) knows that you are one of the advocates of discretion not only in economic policy but in law as well.

So you hold to the radical populist method of decidability which we call the saltwater ideology. There are pragmatists that are trained by our academic institutions to rely upon tradition just as we have the pragmatism of the Chicago school : interference must be limited to that which we have no choice. There are still others that feel the law like physics and logic should be left fully decideable and that the contracts whether public legislation ( contract for commons ) or private ( contact for private goods) must be constructed by those formal logical rules, and that it is up to legislators to find a legal way under natural law to achieve desired ends creatively. This is the position of the most conservative economists – and had it not been interrupted the German Austrian school.

In both economics and law, the debate between the left short term confident discretionists, the medium term minimal pragmatists, and the long them proceduralists continues.

In every era we see the state attempt to exercise discretion and the productive classes attempt to prevent construction and to preserve rule of law.

Although the left has been successful in intentionally conflating legislation consisting of command or contract, those of us who know better, maintain the rhetorical defense: that law means natural law. That common law means judge discovered expansions of natural law, and that legislation can only be logically decidable if we interpret it as contract negotiated on behalf of constituents, but contract under natural law none the less.

So you may possess confidence in your judgements and rose of others, but these procedures were put in place to require government to operate as scientifically as humanly possible given mans record of demonstrated hubris and folly.

You might counter that you have such and such empirical evidence, and you may or may not understand that your claims are false.

But for you to make a claim that an economic assertion is true it must survive the same tests as any other scientific claim:

1) categorical consistency ( identity )

2) internal consistency ( logical )

3) external correspondence ( empirical )

4) existential possibility ( operationally defined )

5) ethically and morally consistent ( consisting of productive, fully informed, voluntary transfers, limited to externality of the same ) IOW:rational.

6) fully accounted for all costs to all capital , stated limits, and parsimony.

Now I will put forward that the reason conservatives cannot argue their strategy ratio scientifically because it’s purpose is eugenic and that is not mass marketable under monopoly majoritarian representative democracy.

But conversely I will also put forward that you are advocating discretion in economics, politics, and law, because you likewise cannot admit your strategy is dysgenic – reversing europe’s 3500 year strategy of eugenic policy – and because to achieve it you are burning down that genetic, institutional, cultural, and intellectual capital such that neither economic science, scientific government, and scientific law, nor the extended, nor inter generational family no less, can survive.

And you justify it with nothing more than increasing rates of consumption despite the evidence that it makes no difference to happiness.

So perhaps you should consider whether it is Thomas who speaks truth and acts morally, or you.

Because the logic of that question is not in your favor I think.

Curt Doolittle

The Propertarian Institute

Kiev, Ukraine.