[porphyrogenitus]

Yes I have, thank you very much, and it does cover the ground on U.S. v Caroline/Footnote 4, I was missing and does so well. Thanks. ^_^

[porphyrogenitus]

IMO; – and it’s just IMO; – the point to make is not that judicial review itself is bad, but that it was never alone to be the sole venue of constitutional interpretation.

The fail isn’t that it exists but that it has become the sole instrument, and people insist today that it is the be-all-and-end-all.

[porphyrogenitus]

Did he really say “the court system is the Constitution,” fullstop? What’s the rest of it for, then?

Plus, he sets up a straw-man that begs the question; the founders, both pro-ratification and anti-ratification were concerned that interpretation would be a major issue. This is one reason they discussed just how the constitution ought to be interpreted. They also discussed the various legitimate means of constitutional interpretation, all of which are brought up in the course.

1) each Federal official takes an Oath to uphold the Constitution, and recall that early on, the idea was that the President should use his veto power to veto unconstitutional measures (thus Washington asking for the opinion of Madison & Hamilton on the constitutionality of a Federally-chartered bank, and, unfortunately, taking the wrong advice. But even if his decision was wrong, his procedure was correct). What happened was since Jackson, first the use of the Veto power was extended to vetoing on policy grounds (arguably this is constitutional, but it was not the tradition to that point), and now these days both Congress & the President, when they feel like it, avoid the responsibility of their oaths and pass the buck, saying it is up to the Supreme Court to decide constitutionality of acts & policies. (Then the Supreme Court likewise passes the buck on a whole range of issues by having a standard of presumptive constitutionality. This is the racket the JD friend is endorsing).

2) Most importantly, covered in the lectures, various Founders – most if not all prior to ratification, and the principled ones continuing to adhere to this position post-ratification, held that it was the responsibility of the people and the states to judge whether the constitution was being followed or not. That is, constitutional interpretation was their prerogative, at least as much as that of courts or any other Federal official. The people, through the states, were, as parties to the Constitution, to determine (interpret) if a measure was pursuant to the constitution (necessary & proper meaning just that – pursuant to the constitution, not “whatever the Federal officials say is, or whatever their courts, filled with people they appointed, say is necessary and proper”), further noting – as was noted in the lecture – that nullification was intended to follow this pattern, with no (single) state necessarily being dispositive in its interpretation of the constitution, but, rather, a state nullifying a law effectively bringing it to the attention to the others for reconsideration, in which case they could join or not.

Your JD, who must have studied Contract Law at some point, is essentially arguing that an agent of a contract, rather than the contractees, is the sole and exclusive judge of whether it is being followed or not.

Or, to put it another way: as argued for in the drafting debates, and as argued for in the ratification debates, the Constitution was intended to have multiple layered defenses against attack, rather than a single failure-point.

Note also: a subtext of this course, not explicitly discussed, is that lawyers & law schools are acting as a guild, protecting their exclusive interests, in putting forward these bogus theories of constitutional interpretation/constitutional law, one that enshrines guild members as experts and de-legitimizes any outside source of judgement. So he is simply advocating the position of his own interest group of technocrats, following the long line of Progressive “scientific public policy/public administration” advocacy.

[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).

[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]

I’m just going to leave this here.

[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.

[porphyrogenitus]

The argument will always be that “oversight could have prevented X” but we need to emphasize what I highlighted; could is not the same as automatically would and with no tradeoff/downside.

We also need to emphasize “what kind of oversight? Underwriters Laboratory-style oversight? or government oversight?” noting that the later has its own incentives, and creates its own problems, as Robert Higgs goes into at length here; this kind of oversight kills more people than it saves.

[porphyrogenitus]

Hoody-hoo! Thanks. ^_^

Also: A blessed Easter.

[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).

[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.

[porphyrogenitus]

You’re welcome, I hope it works out. ^_^

True Believers tend to just add epicycles that boil down to “it doesn’t count as a Real Majority until the Progressive Position wins,” but it is possible to persuade some people, or at least cause them to think.

[porphyrogenitus]

People raise Hume as if he had the last and best word, when it just isn’t so, and as if no-one in over 200 years has addressed the point, which isn’t so either.

It pops up all the time in discussion such as these as if it is a trump that settles the debate. And I guess it does in a rhetorical sense, but not in a philosophical sense, so it is important for people to arm themselves intellectually against this trope-invoked-as-a-trump.

Another book I’d recommend which addresses this, and indeed why Hume has been taken as dispositive, but is not, is Alasdair MacIntyre’s “After Virtue,” an excellent book on the blind alley post-enlightenment philosophy went down.

[porphyrogenitus]

But there’s the is-ought problem: We know what the nature of man is but which rights/laws ought there to be?

The Natural Law tradition from which Rothbard derives his version of the NAP rejects the “is/ought” question for reasons too extensive to go into here (but I recommend, for example, Ed Feser’s Aquinas or The Last Superstition; he may be a lapsed Libertarian but he’s still a decent philosopher on things like that. Also books by David Oldenberg such as Moral Theory. I’m also sure if you got in touch with David Gordon he’d be able to recommend works that address the so-called “is/ought problem” and attempt to refute it). (N.B. Aquinas was not “just” a very significant theologian; he was also a very significant ethicist that even non-Catholics, like myself, and non-Christians, can and should take seriously. That is to say, he makes points that can and should be considered separately from his purely religious arguments; Rothbard definitely wasn’t a Catholic but took him, and all the Scholastics, seriously. I point that out because I know there are a lot of Athiest libertarians, and I don’t want them to feel they’re being confronted with a religious argument that has no bearing for them).

In short, an acorn is a seed of an oak, it is in its nature to sprout and grow into a study, healthy oak tree, and a good acorn will – and ought, by its nature – to do that (good acorns also serve to feed squirrels, and healthy acorns will, if eaten by such squirrels, produce healthy squirrels); any acorn that falls short of that is deficient in some respect; it’s not as good as it could be.

A good square has four sides of equal length, each one at a 90 degree angle to two others and perfectly parallel to the line opposite it. Any square that does not meet this standard (as all real squares fail to do) is deficient in some respect, not quite as good as it could be (which does not mean they aren’t good enough).

From that one goes to humanity; humans have certain qualities, and the word humanity is used advisedly here because it is an English word that still retains its pre-Humean unity; humanity not only designates a type of being (humans); it also conveys a sense of how they ought to behave (humanely). Is and ought are a unity in this moral conception, and the discussion/dispute then is over what constitutes the good for humanity, what humans should do if they are to pursue their nature.

Note the above is a short, imperfect exposition of the principle, into which many holes can be poked, I therefore recommend any of the above resources for more fully addressing it.

[porphyrogenitus]

Blacks, both pre-Civil War and post-Civil War.

“Capitalists in the Soviet Union” is IMO a bad example because there was nothing democratic about Soviet rule (well, there was a pretense of it – they did hold sham elections in the SovWorld. But if your dad thinks those were real, he is probably a lost cause right from the get go).

Property/Business owners in the United States post-Nebbia are another example but he’s probably not ready for that sort of example.

IMO once he starts carving out exceptions, “oh, this mistreated minority was a religious minority, so it doesn’t count; oh, that mistreated minority was an ethnic minority, so that one doesn’t count either, oh, the other one was wealthy kulaks so since they were prosperous you can hardly count them as ‘oppressed,'” he has already substantively lost. However I am certain there are policies democratic nations have which he does not like, and which can be stacked up as failures of democracy.

One can also point to the fact that in many if not most ways almost all “Western Democracies” are hardly democratic anymore anyhow, with most of the rules we live under being made by permanent bureaucracies.

Probably Hoppe’s book Democracy: The God that Failed can be mined for examples of how democracy fails.

But, really, if he seriously believes that people who disagree with a minority should be forced to comply with it at gunpoint, you’re probably beating your head against a brick wall. HOWEVER, my other way of approaching it is probably thus: such people often have a cognative dissonance, especially if they’re leftists. By which I mean they also tend to believe in “brave progressive dissidents speaking truth to power” and advancing The Movement. You can point out that many (most?) of his heroes were, at the time they were “standing up for social justice,” in the minority on whatever position-of-the-day they held, and by his own theory of absolutist democracy the majority would have had the right to crush them instantly, silence them, and impose their beliefs on them (I wonder if he also thinks he believes “imposing one’s beliefs on others” is wrong, at least when done by people he doesn’t agree with, however numerous they might be). Point out that it is only the protections of liberty – liberty of the minority – however feeble those protections might be, which allowed these “stalwarts” the platform they had.

Probably what he really means though is the right of any temporary majority he agrees with to impose views he shares for once and for all time. Collectivists tend to be like that – this is why “democratic majorities” that protect anti-collectivists policies and positions don’t mean much to collectivists except as obstetrical to be overcome rather than as “the majority has spoken, and we, being sincere majoritarian democrats, will respect and bow to the collective decision we as individuals did not share, out of collective obligation. All praise the wisdom of the collective.” No, they redouble their efforts to undermine and work against it and even use non-democratic institutions to subvert and overturn it and get their own way.

Apologies if your dad is not like that but is a sincere collectivist majoritarian who hops on whatever bandwagon is most popular at any given moment, be it the Iraq War ten years ago or opposition to Obamacare (opposed by a majority of Americans both when passed and still) now.

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