Reply To: Chisholm v. Georgia


Further this argument is to the effect that the Constitution should be altered outside of the legitimate amendment process – which is what constitutes arbitrariness and lawlessness, that is, factors unlikely to lead to justice – and we get what we have now, and it is an example of how that path does not lead to justice, but rather, destruction.
The same argument might be used against originalism: If some federal judges overturn long-standing precedents based on the original understanding of the Constitution, others might feel free to reject precedent in favor of their own pet theories of constitutional interpretation, which would result in chaos and unpredictability. Therefore, federal judges ought to follow the principle of stare decisis, which at least guarantees stability – or so a supporter of the status quo might argue.

I suppose it is a question whether an optimal constitution would empower a Supreme Court to serve as a body of Platonic Guardians […]
I don’t claim that an optimal constitution would do so. If the positive law does not allow a court to hear a specific case, then the court should not hear that case. But I don’t agree that courts should always follow the positive law, even if it obliges them to commit an act of aggression. This applies to all courts, not just the U.S. Supreme Court (and also to police officers etc.). In other words, I endorse jury nullification, judge nullification, police-officer nullification etc. against unjust but constitutional laws. And I maintain that as a rule, it is impermissible to commit an injustice in order to minimize the total amount of injustice in the world.

But I agree that people should not work for law enforcement in the first place.