Monday, April 27, 2009

Why The Law Is Foreign
To Ginsberg

by Selwyn Duke - April 26th, 2009 - American Thinker

Yet living-document justices are comforted in their misfeasance by rationalizations they conjure up to justify it. One that Ginsberg has used is to criticize the view that the Constitution is "stuck in time." But she has it wrong. It is not stuck in time but stuck in law. Law can be changed through legal measures -- in the case of the Constitution, the amendment process -- but until then it's supposed to be "stuck." The alternative to being stuck in law is being subject to the caprice of those with greater power. That would mean that you could appear before a judge and he could rule based on whim or that a policeman could arrest you because he believed he had just experienced an epiphany about what the law should be. In other words, this thinking is no different from the rule of kings, where a Herod could deliver John the Baptist's head on a plate to please his wife. It is why G.K. Chesterton said, "There are only two ways of governing: by a rule and by a ruler." It is why we should have "the rule of law" and not the rule of lawyers.

And this is why some of us have likened our Supreme Court to a de facto oligarchy. After all, on what basis does an oligarchy rule? Its members decide guided by nothing more than the dictates of their own consciences. So people can put as much lipstick on this pig as they want. They can wrap their living-document legal philosophy in a million pseudo-intellectual arguments. But, at the end of the day, it boils down to might makes right. When justices depart from constitutional constraints, they cannot be voted out of office or fired. The only thing constraining them then is their own consciences and the regard of their overseas peers -- just as with an oligarchy

An interesting article which clearly explains the logic by which many of us have come to have nothing but contempt for the Supreme Court... actually contempt for the entire American court system.


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