30 Sep 2015

Sophistry as the New Constitutionalism

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ObergefelCartoon

Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.

Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.

Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.

What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.

The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

Read the whole thing.

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2 Feedbacks on "Sophistry as the New Constitutionalism"

SDD

But, you see, the world should be directed by The Really Smart People (e.g. those with law degrees from Harvard and Yale). How else are they to enforce that?



T. Shaw

Most of the unelected, robed cretins’ fiats are neither fact nor truth. Rather, they are fabrication and deceit.



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