http://www.economist.com/blogs/democracyinamerica/2012/07/gun-rightsFRUSTRATINGLY POOR UNDERSTANDING OF LAW AND SCALIAS COMMENTS
The economist demonstrates its own ignorance.
The purpose of textualism is to force the government to legislate changes explicitly and to prevent the court from becoming a tool of law-creation that circumvents the democratic process. THAT is the point he is making. We have a process for making laws. And a process for altering the constitution. The court should not be in the process of making laws. And the government should not be in the process of incrementally altering the constitution by non-amendment means. THAT’S THE PURPOSE OF TEXTUALISM.
Scalia’s only mistake was overestimating the intellectual capacity of the audience.
Scalia is a bit of a personal hero. I adore his clarity.
He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.
Now, I’m sure that’s because it’s obvious as the summer sun to him.
But to the average person, it isn’t.
The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.
The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.
Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.
This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.
Of course, this makes no sense, because, that is the very meaning of the ‘rule of law’: limits on what laws can be enacted.
And it assumes, incorrectly, that we are wiser than we are.
Scalia is a bit of a personal hero. I adore his clarity.
He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.
Now, I’m sure that’s because it’s obvious as the summer sun to him.
But to the average person, it isn’t.
The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.
The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.
Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.
This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.
Of course, this makes no sense, because, that is the very meaning of the ‘rule of law’: limits on what laws can be enacted.
And it assumes, incorrectly, that we are wiser than we are.
ATTEMPT TO USE A UN TREATY TO CIRCUMVENT THE CONSTITUTION AVOIDED
I really prefer to stick with political theory itself, rather than get involved in individual initiatives. But this is a great day to celebrate the avoidance of a terrible abuse of our system of government.
It’s not common knowledge that Treaties have the same legal power as the constitution. They are effectively amendments. The Obama administration has been trying to accomplish through the treaty process what it could not accomplish through the democratic electoral, or legislative process.
This is only one of the initiatives that the administration is using to circumvent the constitutional protections we enjoy. And it’s the first one to be defeated. Hopefully it will be only the fist to be defeated.
Congratulations to everyone who wrote letters, emails and made phone calls.
WE GRANT OUR VIOLENCE TO THE STATE IN EXCHANGE FOR PROPERTY RIGHTS
And should the state no longer preserve those rights, we may deem the contract broken, and put our violence to other uses that will obtain us those rights.
The reason that someone can violate another’s privacy is because there are insufficient property rights due to the ‘tragedy of the commons’ in ‘public’ areas.
However, we don’t need to get that complicated. If all citizens of a village are shareholders, and shareholders vote to create a contractual obligation that we don’t look up women’s skirts, then there is nothing that violates ‘libertarian’ principles. It’s a private corporation. The shareholders determined the rules. The people can voluntarily go to that village or not.
The problems for libertarians are a) that we don’t have the right of exclusion (we can’t randomly forbid people from shopping malls or city streets), and b) we don’t have the right of secession, which means we can’t set up our own rules for our own neighborhoods. This amounts to the government causing and subsidizing bad behavior.
The reason that someone can violate another’s privacy is because there are insufficient property rights due to the ‘tragedy of the commons’ in ‘public’ areas.
However, we don’t need to get that complicated. If all citizens of a village are shareholders, and shareholders vote to create a contractual obligation that we don’t look up women’s skirts, then there is nothing that violates ‘libertarian’ principles. It’s a private corporation. The shareholders determined the rules. The people can voluntarily go to that village or not.
The problems for libertarians are a) that we don’t have the right of exclusion (we can’t randomly forbid people from shopping malls or city streets), and b) we don’t have the right of secession, which means we can’t set up our own rules for our own neighborhoods. This amounts to the government causing and subsidizing bad behavior.
I’m writing a pleading. I actually like writing them. It’s like philosophy except that the law is even more criminal in itself than the things we adjudicate with it.
What is so painfully obvious to the libertarian, is the need to compensate for the pervasive ignorance of the state, its total abandonment of property rights, and the emphasis on protecting the presumption of competence of the court rather than the property rights of the individuals at hand.
Compared to philosophy it’s like slumming for beers in the cheap bars in college.
We often confuse ourselves that we create laws to produce the declared ends. But when we create laws we create a portfolio of property rights — from the prohibition of them under communism, to the centralization of them under socialism, to the lending of them under democratic socialism, to the individual ownership of them under libertarianism, to the abandonment of them under totalitarian thievery. As such land requires taxes, because any composition of the institution of property requires laws by which to exclude other compositions of property, and that we bear the cost of prohibiting those alternative compositions of property by the threat of violence. The government is a monopoly on violence for the purpose of creating the institution of property rights.
