Form: Quote Commentary

THE PROPER METHOD FOR THE SUPREME COURT’S DECISIONS

—” the constitutional doctrine of separation of powers mandates that judges anchor their analysis to the text as reasonably understood by the people of the time. If that leads to a violation of Reciprocity (Natural Law), then the proper avenue for redress is to amend the constitution so the text better and better codifies Reciprocity (Natural Law).”—

I assume, and the minority of strict jurists assume that the founding documents consist of The Declaration, The Constitution, and The Bill of Rights. And if clarity of original intent is required then we resort to The Federalist Papers, or notes on the proceeds of the debate. Once the bill of rights was ratified, then the founding documents were complete.

1 – The Declaration contains the appeal to Natural Law as justification for secession(independence).

2 – The Bill of Rights codifies the natural law as they enumerated those rights at the time.

3 – The Constitution describes the organization and processes of the government.

I tend to tell people to read them in that order: Declaration, Bill of Rights, and Constitution: from the reason for the secession: violation of natural law, to the articulation of the specific defenses of it, to the institutions that protect it yet still allow for the production of commons.

Unfortunately, first, reciprocity is not specifically stated as the first rule of natural law. Second, there is no requirement that the judiciary certify the constitutionality of legislation, and instead, all legislation ascends until falsified by the court. In other words, the market tests the legislation, and if conflicts arise the court corrects legislation.

This approach continues the no-prior-restraint of the Anglo Saxon (Germanic) law versus the prior-restraint of continental (french and roman) law. And this is yet another example of ‘markets in everything’.

Worse, without specifying Reciprocity, there is no means by which the initial rights can be limited, and therefore no means by which the court can limit the grant of rights rather than permissions and obligations.

Worse, there are no means by which the court can return the legislation to the legislature and demand correction. Nor are there means by which the court can suggest corrections or amendments to rectify the deficiency, and return to the legislature.

As such the court must, as the president must, choose ‘line item veto’ so to speak, or to veto the entire piece of legislation. So that is what the court does.

And the court members use different criteria for determining the power of the legislature:

1- Rule of Law (Substantive) in which the legislature and the people may only act in concert with natural law (reciprocity), or ;

2-Rule by Law (Formalist) in which the legislature can do what it wants;

3-Rule by Law (Majoritarian), in which the people can do whatever they want.

In other words, there are always at least THREE parties to a matter before the court: Plaintiff, Defendant, and Legislature. And the court cannot demand remedy of the legislature. And that is the oversight.

Curt Doolittle

The Propertarian Institute