[msickmeier]

Reading Professor Gutzman’s The Politically Incorrect Guide to the Constitution, I found the [Chisholm v. Georgia] case and application to the 11th Amendment confusion and interesting (pg. 54). The claim was that “Georgia owed money to the estate of a dead South Carolinian for supplies provided during the Revolutionary War.” The controversy (if I understand it correctly) was that Georgia did not consent to be taken to court; the Supreme Court then ordered a default ruling, thus overriding state sovereignty.

My confusion those is what would have been the ideal solution? If the role of the federal Gov’t is to protect private property and contract, would this not be in line with limited Gov’t principles? As being from Georgia and a state-rights person myself, I understand the argument Professor Gutzman was putting forth, but I find myself on the middle of the fence.

I seem some odd similarities to the recent case, Sackett v. EPA where the EPA refused to be sued, and therefore would not be challenged in their decision over the Sackett family’s property. Where do we draw the line between sovereignty and other’s rights to a court hearing?

[gutzmank]

The Federal Government is supposed to be a limited government, with only the powers delegated via the Constitution. Since Article III does not empower federal courts to hear suits against state governments, they have no such jurisdiction. In case this idea doesn’t appeal to you, there’s the 10th Amendment. In the wake of this case, there’s also the 11th Amendment.

Of course a man should be able to seek justice. In the American system, that means by going into a state court, in case the state allows it.

Some people believe in “courts of justice,” but in the American system, we are supposed to have “courts of law.” The difference is that in the former model, judges’ discretion is relatively unfettered, while in the latter, they’re on a tight leash.

[msickmeier]

I am in no way a legal scholar, in any sense of the word. My academic experience has been purely business-related (accounting). Your book has been my first real brush with the topic of Constitutional law. That being said, I defiantly understand and-as a principle-agree with the idea of Article III and the 10th Amendment.

But that nagging question keeps coming back for me. What should of happened? If the State of Georgia stood on the concept of “we can’t be taken to court unless we consent” seems problematic. Should the South Carolinian just taken his lumps and said “well, live and learn.” I guess it all flies in the face of what I’ve learned is the Libertarian stance on Gov’t. That its main role (if any) should be to protect private property. I appreciate, you Professor Gutzman, helping me figure this out.

[porphyrogenitus]

The Libertarian response and lesson isn’t that the Constitution-as-drafted was perfect; it was always going to have problems of that sort because anything having to do with governments will have problems of that sort. But there would be fewer problems, and relatively more liberty, if it had been followed, and if the problems had been corrected in the appropriate way (through amendment, rather than courts and officials reading into it their own statist preferences), and that, yeah, on some occasions people are going to have to take their lumps and “live and learn” but that tends – especially over time – to be better than a system where people think the (central) government will protect their every decision, when in fact, it does not.

[msickmeier]

So, essentially, its a utilitarian approach?

[gutzmank]

No, it’s not a utilitarian approach. A utilitarian approach would be the one you favor: apply libertarian principles to the facts at hand, law be damned. As Justice James Iredell noted in Calder v. Bull (1798), however, no two men agree what the natural law is, and so saying that federal judges are free to apply their own ideas of the Good, theTrue, and the Beautiful means that we’re in a lawless society: one in which the judges can impose whatever policies they want to impose upon us, and we can’t do anything. In short, your solution is akin to that in today’s Iran, where the mullahs make the final decision, or Egypt, where the army does. Unfortunately, a high proportion of federal judges today behave as you seem to prefer, with the notable qualification that they are not libertarians.

When someone becomes a federal judge, he takes an oath to uphold the Constitution. In case he finds this inconsistent with his ideals to such a degree that he cannot in good conscience apply the Constitution, he should resign his office, not enforce principles that violate his oath.

[msickmeier]

It’s not a matter of which “I prefer” or of which “I favor.” I was simply exercising critical thinking as it applies to this case and the importance of private property and contractual agreements. I understand that at the end of the day we need a final decision, and the law as it’s prescribed in the constitution is a wonderful start. I did not wish to challenge anyone assertions, this was simply me working through this conundrum, in my head, and looking to see if others could provide insight (of which everyone did).

I understand, and totally agree that it’s best we have “courts of law” instead of a “courts of justice” where every newly appointed federal judge gets his/her crack at “setting the record straight,” “social justice” or any other Leftist-judicial crusades.

As a believer in private property and contractual agreement, I suppose I am guilty of want the law to bend to my political biases. So, in closing, I agree it’s best for everyone to have law as an “absolute.” Making too many exceptions to the rules, (even in upholding contracts) can be a dangerous road to go down. As our modern judicial system has displayed.

[porphyrogenitus]

Note that neither Dr. Gutzman nor Dr. McClanahan endorse the Constitution in toto as the absolute best instrument possible. What they do in the lectures such as this one is, as scholars, point out the difference between what was ratified (and thus ought to have been enforced) vs what was actually done, and they note that “it sounds good in this case” or “it achieves some policy result someone [including perhaps we] prefers” is not the same as “it follows the constitution.

This was one of the good and clearly-made points in some of the lectures I critiqued earlier; that they might agree with the policy aims that some late 19th/very early 20th century Courts “read into” the Constitution in striking down economically ignorant state laws, but 1) the Court was not given the power to do so under the Constitution (though arguably some of these cases would have fitted under the Contracts Clause, when they struck down the laws on the basis of “substantive due process,” that was incorrect and improper) and 2) case-laws such as these build up a storehouse of trouble for later generations.

People who accumulate power and transgress limits on their power usually do so for reasons they think of as serving a good purpose. Even the “bad guys” in these political dramas who were also enriching themselves thought that the goals and political system they were trying to create would be for the greatest good; they justified their various schemes on, well, utilitarian grounds (though the ones in the Founding period came a generation or two before “utility” as such became commonplace terminology).

[msickmeier]

Beautifully said, Porp. I agree 100%. Thanks to you and Prof. Gutzman on helping me understand this more fully.

[gutzmank]

We aim to please.

[david_konietzko]

No, it’s not a utilitarian approach. A utilitarian approach would be the one you favor: apply libertarian principles to the facts at hand, law be damned.

“Utilitarian” is not a synonym for “unprincipled” or “arbitrary.” Utilitarianism is the view that one should do whatever maximizes utility. Applying libertarian principles regardless of the positive law is not a utilitarian approach (unless one claims that we ought to apply libertarian principles because doing so will maximize utility).

[S]aying that federal judges are free to apply their own ideas of the Good, theTrue, and the Beautiful means that we’re in a lawless society: one in which the judges can impose whatever policies they want to impose upon us, and we can’t do anything.
But nobody has proposed that judges ought to apply whatever principles they think are just. Matt_Georgia’s original proposal (which he seems to have retracted) was that judges ought to apply whatever principles are in fact just (i.e., libertarian principles). And libertarian law has been worked out in quite some detail. Of course, there are disagreements about how to apply libertarian principles to particular issues, but this is the case with every law code known to man, including the Constitution (not every conceivable constitutional issue was explicitly discussed at the ratifying conventions).

On the alleged arbitrariness of natural law: The argument that judges ought to follow the positive law since otherwise the legal system would be unpredictable and arbitrary relies on the assumption that the rule of law is objectively better than arbitrary government. Isn’t this a kind of natural-law argument?

I think Dr. Gutzman’s position on Chisholm is defensible because we do not have an absolute duty to prevent others from acting unjustly. But we do have an absolute duty not to commit any injustices ourselves, even if we have taken an oath to do so. This means, e.g., that a judge may never convict someone of drug possession, even if a law that is in accordance with the constitution obliges him to do so.

[porphyrogenitus]

Note, again, that in his responses here, Dr. Gutzman is not saying “X is what should happen in a perfectly just world,” but rather “X is what ought to have been done if people were following the Constitution-as-written rather than doing-whatever-they-feel-is-best.” In the lectures both he and Dr. McClanahan have several criticisms of the Constitution that was drafted and ratified, and in their outside work no doubt they have more. But a course on Constitutional Law focuses on “what is Constitution,” not on “what is abstract justice in a philosophical sense” (though this later informs their critiques of the Constitution-as-drafted-and-ratified, that is, in the first several lectures). For that I recommend some of the many courses by Dr David Gordon at the Mises institute, and perhaps eventually Dr. Woods will present us with a course on political philosophy/ethics (which I for one would like to see). But this is distinct from that; that is not a book, and this is not a course, on “what a perfect constitution ought to be,” but rather a course on what was drafted, what was clearly understood to have been ratified, and the history of how that was perverted. 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.

Beyond that, I’m going to limit myself to responding to one part of your post:

“But we do have an absolute duty not to commit any injustices ourselves, even if we have taken an oath to do so. This means, e.g., that a judge may never convict someone of drug possession, even if a law that is in accordance with the constitution obliges him to do so.”

It is also true that a person ought not take an oath they have no intent of fulfilling. Perhaps this means that as a consequence this means offices will be filled with less-than-fully-worthy people, but that is itself a consequentialist argument, and it is certainly true that if one takes an oath with false intent (I.E. taking an oath to uphold the laws, without mental reservation or purpose of evasion, but all along intending to not follow that oath because one disagrees with several of the laws one is swearing to uphold) insures that one is, oneself, a less-than-fully-worthy-person, is engaging in deception, and thus injustice.

Which is one of the grounds upon which some principled people state their opposition to getting involved in the political process, officeholding, and the like; that to do so is to commit oneself to some measure of injustice, and a breach of one’s integrity because one must either do what one thinks is right, or uphold your promise (the later of which – keeping one’s word and oaths – is certainly on the list of things a person of integrity ought to do. A person of integrity does not give one’s word/oath with the intention of breaking it).

I suppose it is a question whether an optimal constitution would empower a Supreme Court to serve as a body of Platonic Guardians, but the U.S. Constitution did not so empower them, so on that grounds I think Dr. Gutzman’s analysis is fair.

[david_konietzko]

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.

[porphyrogenitus]

“The same argument might be used against originalism: If some federal judges overturn long-standing precedents”

Such arguments are made by people who want free-floating reinterpretation when it favors them, though, and they invoke it selectively in order to protect certain precedents they like, but they never employ this themselves when it comes to innovative rulings. So when people make such arguments, we can reject them as mendacious doublethink.

“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.”

See above – defenders of the statist quo do not, in fact, believe in following stare decisis as a matter of principle, but rather rhetorically as a whip against their opponents, in the same way they want to redefine “conservatism” in a way that favors them (“conservatism” becomes “defending the most recent changes imposed by progressivism”).

“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”

Now, I don’t endorse legal positivism, but Platonic Guardianism just is what you’re arguing for here – that judges should set aside law, and even the stare decisis you invoked in the first half of this response, and substitute their own vision of justice, and this is the best sort of government and will produce – well what does it in fact produce? What it in fact produces is not libertarianism, but something closer to what we have now; judges serving as a plenary council of absolute power (absolute power to impose their own view of justice), such as in the case where the Federal Judge seized control of education in St. Louis (I believe it was), set tax rates and how education dollars would be spent and personally oversaw/superintended that school system on the grounds that it had previously been being conducted unjustly (in his view), because to do otherwise would be, he believed, to allow injustice and the only way to prevent injustice and guarantee his vision of justice was to take the power into his own hands, which is exactly what he did.

What you are sidestepping is that there are procedures by which justice ought to be pursued as well, how laws are made is something important, not just what the laws are, and you’re asserting that judicial fiat is the proper way to pursue justice, and that the constitution is best set aside or simply read as “those in governmental power Ought to do whatever they deem necessary to prevent injustice, even if it is ultra vires.” That this method the opposite of liberty should not be hard to see, for it is what is all around us.

To that end, it does prove the one thing I have always maintained is democracy’s main virtue, both when I was a typical Madison, Wisconsin Liberal, and when I was a typical conservative, and now: democracy does mean that people get the government they deserve. Note I did not say (and never have said) they get the government they want. Those are clean different things.

[porphyrogenitus]

Argument: I think you’re missing the overarching point of the lectures. You don’t just give power to people in the way you assert and expect them to act against injustice.

First – people need to learn and know what true justice is. Otherwise they will do things/allow things that are unjust.

Secondly – institutional arrangements matter. Even if you start off with people who have an understanding of justice and a desire to prevent injustice, the institutional framework and procedures in which they operate matter, because otherwise later people could use the same methods you are promoting here to do quite wrong things, all the while (sincerely) believing they are doing what is necessary to root out injustice.

The core overarching argument of this course is that the U.S. Constitution entered “failure mode” almost immediately after it was ratified, that the anti-rats were correct in their predictions, and that all the things those in power, particularly in judicial power, have done ultra vires – outside of the powers explicitly delegated to them in the constitution – have over time produced worse and worse injustices, a far cry from your apparent expectation that such methods will lead to sunlit uplands of a reduction of injustice through the use of their offices and suchever power they can accumulate via precedent (which we of course must follow! Stare Deicisis Uber Alles if it works to their benefit; – but not if it does not [this is their real argument against originalism] because, of course, power in their own hands is used to prevent injustices all over the nation and the world beyond, so when they have power in their own hands, these graces are strangers in their gates; but even this sort of consistently-having-two-standards argument is part of their our-ends-justify-our-means position, which is the Hamiltonian-Marshallian system we have inherited in reality, for they use this as a means to close off any attempt to reduce their power to do what they see as rooting out injustice while still allowing them to advance progressively in their great movement).

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