House of Eratosthenes

I was checking out Brutally Honest, Rick’s site to follow up on a mildly interesting and explosively-expanding thread underneath the Harley Davidson “Screw It, Let’s Ride” commercial. I have found it to be a dialog worth following, because it has morphed into a deliberation of manhood; an inspection of what, exactly, it is. We can always use more of that, and I’ve noticed both sides are putting a lot of thought into it. Rick (and Gerard too, evidently) sympathized with the ad and the attitude it sought to promote. Guest blogger and frequent commenter BroKen did not. It would seem at first blush that such an exchange wouldn’t have much place to go, since it’s a battle between pet peeves and therefore between emotions. Rick is sick and tired of being told the planet is in danger and we all need to buy some carbon credits and unplug our cell phones; Ken is sick and tired of apathetic, irresponsible people.

I think Ken’s crime, here, is one of overanalysis. He’s rather like the guy who’s told the urban legend about the late-night pedestrian who sees two headlights coming toward him, assumes they’re motorcycles, and goes between them…is DRT (Died Right There)…and upon hearing the story, the guy asks “but how do they know what he was thinking if he died?” Sometimes logical questions can open up entire sub-arguments that, when all’s said & done, aren’t worth pursuing. It’s possible.

Also possible, is the Panic For Sake Of Panic, and although I’m sure Rick has other examples in mind besides global warming, the environmental movement is certainly central to his inspiration. We’re being called-upon to panic over things quite a lot lately. Panic is not constructive thinking. Masculinity, Ken’s comments about it notwithstanding, can have a lot to do with letting it pass by with little action, or even no action at all. This would be the “keep your head together” aspect of manliness. In the case of the gas that costs almost five bucks a gallon, our error is in forgetting supply-and-demand, being too quick to blame cartoonish stereotypes like “Oil Executives”…presuming that our destruction is desired by people who are engaged in trade with us, and not by the people who seek re-election to Congress periodically through messages that resonate with our suffering. In the case of global warming, we’re confronted by a boogeyman that exists in the mind. Buzzwords, a few “scientists” funded with George Soros’ money, the allure of knowing massive bureaucracies and orthodox fellowships are already mobilized into motion around the boogeyman. The ambition to be part of something huge, nevermind having no impact at all on what it does based on one’s individual participation in it. Like the Barack Obama campaign, modern radical environmentalism has become a tantalizing pastime for those among us who lack intellectual masculinity. Those who desire to clamber on board a massive ship so they can be seen being on it, to grab an oar and help row it so they can be seen rowing it…and have nothing to do with steering it. Steering entails decision-making, and decision-making involves far too much responsibility for the gelded mind.

The four-word tagline “Screw it, let’s ride” is a joke that’s gone over Ken’s head, I’m afraid. In some situations, it can be a healthy and mature attitude. Like, anytime panic is the point. When someone nameless and faceless wants you to lose your bearings, and whispers scary campfire stories into your ear so you’ll fearfully listen to whatever comes next. The headstrong, able-minded manly man says “screw it, let’s ride.”

Through the kernel of truth that was involved in the scary story to make the remaining 99% of the panic digestible, this may entail risk. But we tend to forget that life is all about risk, and it is only through the elimination of life that you completely eliminate all risk.

Enough about that particular confusion vis a vis manhood, masculinity, manly thinking, etc. Let us examine another flavor of such confusion. Let us turn our attention from those who over-analyze, to those who do not analyze enough.

Rick has some more good stuff that is worthy of comment.

Dahlia Lithwick has made a career out of commenting on American law, especially as it is molded and shaped in our Supreme Court. She was born, and remains, a Canadian citizen. If you’ve exchanged ideas over the innernets with enough Canadian citizens about American law, as much as I have, you know what’s strange about that. For the benefit of the uninitiated, I shall expound…

The weakness in her mindset is betrayed by the passage:

The conventional wisdom that the Supreme Court is precariously balanced on a knife’s edge—with four liberals and four conservatives battling for the heart and mind of swing Justice Anthony Kennedy—is too simplistic. The current term has seen enough unanimous and near-unanimous decisions to suggest that the story of a 5-4 court is dramatic but inaccurate. That said, it’s clear there are four justices on the bench who deeply mistrust the judiciary, in the manner of a Rockette who doesn’t care for dancing. Dissenting in this month’s habeas case, Justice Antonin Scalia predicted that judicial overreaching “will almost certainly cause more Americans to be killed.” John Roberts added that “unelected, politically unaccountable judges” should not shape detention policy. One more jurist at the high court who generally believes that jurists cannot be trusted would spell the difference between a court that is a coequal branch of government and one that cheers from the bleachers. [emphasis mine]

Okay, now for this to make any sort of sense — you have to believe that any self-imposed limitation on the Supreme Court’s authority would be tantamount to an internal, self-criticizing belief “that jurists cannot be trusted.” Her “Rockette” crack makes it clear, to me, that she means to devalue such restraint, to make it equivalent into almost to sort of a mental illness. Perhaps she doesn’t realize the extraordinary intellectual difficulty that would be involved in applying this rule to the Supreme Court, and keep other institutions insulated from it, but I’m willing to go out and a limb and presume: Dahlia Lithwick does not believe in restraint of authority anywhere. Wherever someone can order something, they should. She probably liked it just fine when Gavin Newsom handed out marriage licenses when the law clearly said he didn’t have the authority to do it; I’m sure she was just as fond of the Supreme Court giving George Bush the smackdown over Guantanamo detainees and military tribunals.

How about President Bush’s decision to form those tribunals before the Supreme Court decision came down? If I’m correct in thinking Lithwick admires lack of authoritative self-restraint, that’d be a great example of it. Her careless, breezy use of the word “coequal” implies that she thinks the three branches should be able to do more-or-less the same things, and her implication that the Supreme Court carries legislative power would help to substantiate that. Somehow, I don’t think Lithwick is going to be quite as big a fan as that. No, she likes restraints on government-branch power to be jettisoned, when the decision under consideration is one she happens to like.

You simply can’t have separation of powers…a uniquely American doctrine…with that in place. Furthermore, as it’s been pointed out in many other places since then, Lithwick is engaged in some Holy Battle in which we old white males represent the forces of evil, because we’re old, white and male:

Anybody who believes the current Supreme Court looks like America needs to take a few more trips on a Greyhound bus. All the judges are white and/or old; most are both. [emphasis mine]

I have to stand on what I entered at Rick’s place:

What I wouldn’t give for a pleasant (hopefully, to stay that way) dinner conversation with her, or someone from this planet. Is their idea of the “wall of separation” between judiciary & legislature, the same as mine? Do they even have one? Or are they so much into “pack every single panel that has any authority at all with good people like me” that they haven’t even put that much thought into it?

In order to define what exactly is wrong with nutty, delusional people, sometimes it’s necessary to state the obvious. Popular belief notwithstanding, this is something I really hate doing…but let’s go for it.

You have a law. Like most laws, it leaves room for interpretation. Perhaps because the law exists in a context in which it’s impossible to avoid that, or perhaps because the law just happens to be worded badly. Let’s make it a badly worded law to make the example clearer — the law is:

Don’t Drive Fast Here

You drive through there at 45 because you think that isn’t fast. Why, on the freeway, you’re allowed to go as fast as 65! But the cop who busted you thinks anything over 30 is pretty fast. He busts you. You appeal. The case goes all the way to the Supreme Court.

The Court, here, essentially has two options: 1. It can uphold your penalty or 2. It can let you off the hook. It comes down to the “opinion” of the Justices overruling all other opinions now and forevermore (or at least, until a better sign is put up with a better law behind it). The side effect is that, if you are let off the hook for driving 45, it will become legally impossible to cite someone for driving through the same thoroughfare doing 35. On the other hand, if you’re busted, then anyone who gets a ticket for driving 55 and wants to appeal can just forget it.

This is jurisprudence. It is, specifically, stare decisis et non quieta movere; “stand by and adhere to decisions and not disturb what is settled” — or at least, that’s what it is called the next time a different case presents the same question. It is “law,” in all the ways that matter, but without democratic participation by the electorate, without critical thinking, without deliberation about cause-and-effect. Consistency is the only virtue to it.

I made reference to Lithwick’s “planet.” On mine, stare decisis is a noble ideal but when too much emanates from it, that is a toxic agent. So people like me see the Supreme Court as engaged in a struggle, to continue deciding cases for as many decades as possible without hopelessly tying itself up into a huge knot. The nightmare scenario is one in which stare decisis runs headlong off in one direction, and common sense sprints in the opposite direction. At that point, the Supreme Court must overrule itself, and admit that justice has been miscarried. For years.

Lithwick’s planet is one in which this is a desirable outcome. Bad laws like “Don’t Drive Fast” breathe life into the judicial branch, give it a reason for being “coequal,” and the courts are at their most noble and glorious when they seize this false authority and wield it.

I do not know what people on Planet Lithwick mean by “coequal,” exactly. I really don’t. I don’t think they know either. It’s clear to me they think decisions are “good” when they exude greater volumes of stare decisis side-effect…make things illegal that weren’t before…make things legal that were illegal before. It’s obvious they think more highly of the decision when the interpreted effect is contrary to the reasoned expectation of Congress, or other lawgivers, when the laws were legislated or ratified. They place a value on unintended consequences.

On my planet, we call that what it is: Bad law. We count on the judicial branch to step in, and make law that way where it did not exist previously — when Congress is unwilling, or unable, to do it’s job. And it’s an occasion for mourning, not celebration, because we know a law has just been made that has no common sense behind it. We know a “committee” decision — the most dreadful kind — has just been made, and nobody will be accountable to it because it will not have been made in any one individual’s name. Breathy, throwaway phrases like “evolving social mores” and “standards of decency” will be used to announce the results of polls — polls that were in fact never taken. Impact without ownership. Remember what I said about decision-making being an unacceptable burden to a gelded mind. This is an entire system of government, ruled by gelded minds.

So I agree with Planet Lithwick about the stakes being “very high.” She’s right. Just not in the way she thinks she is.

This is America. You may have heard of it, Dahlia. It is a place where our Supreme Court, and all the rest of our judicial branch…is not a supplementary Congress.

Our real Congress has long vacations for a reason, after all — we can only take so much of what they do. The courts are places where Congress’ messes are cleaned up. Congress certainly doesn’t need help making them.

In a successful attempt to win games, newly hired coach, Vince Lombardi, assembled the team, held up the beloved pigskin and said, “Men, this is a football.”

Coach Lombardi, a man with distinguished “male cred,” understood the importance of “The Basics.” For a man to reach the highest level of skill at any trade, the journey should begin by learning to correctly sweep the shop floor.

Big Ed…you know…the giant make-work program for the dull and in-articulate, has swept away the entire shop into the swirling toxic soup of political correctness, now terrorizing our children at public schools.

Expansion and self-preservation is the only goal of Big Ed today. The basics, and the future of our boys learning to become men…well… get under the bus.

Water will seek it’s level, no matter where, obeying the law of gravity, no matter what. Since we are part of nature, no matter the unforgiving waves now thrashing us, balance will be restored.

The United States Constitution establishes, via written contract, the recognition of the balance of natural law. It defines, codifies, and enshrines the Laws of Nature. It provides a detailed map, carefully prepared by those that passed this way before, to navigate the perils of tyranny we now face.
- Mr. Hatchetman | 06/27/2008 @ 14:55
No.

No.

No, no, no, no, no, no, no.

This is a fundamental misunderstanding of the role of judges. When it comes to matters of criminal law, said law being duly created by society, it is society which decides whether or not the suspect broke the law. That’s why we have a jury system, where representatives from said society decide whether the person broke the law or not. It is the jury who makes that determination, and the judge merely applies the punishment predetermined by society (within the limits predetermined by society; i.e. 3-5 years).

Civil law is a slightly different matter, because there the judge acts as an arbiter between two disputing parties who have (theoretically) chosen to abide by the judge’s decision.

At least, that’s the way it was supposed to work, before the Supreme Court granted itself the power of judicial review in Marbury v Madison. Under the Constitution, the Court was never supposed to have any power over the other branches.

I start law school at the University of Alabama next month.
- JohnJ | 06/27/2008 @ 20:03
Right. The branch of “constitutional” law was effectively created with Marbury vs. Madison in 1803. The Supreme Court at that time was just a glorified “Justice of the Peace” that translated the law into a specific case-by-case directive. In the matter immediately under discussion it was a Writ of Mandamus that would have ordered Secretary of State Madison to award the judgeship to William Marbury who had brought the case to the court in a civil procedure.

The thing I find amusing about this is that the Marbury decision effectively decided the Writ should have been issued. If you read the decision, Chief Justice Marshall declared Marbury had been gypped, and in fact was entitled to judicial remedy; indeed declared it was the duty of the Supreme Court to issue the Writ. And then he declared that there was a statute that gave the Supreme Court this authority, but that that statute conflicted with the Constitution. He proceeds from there to argue it is the Supreme Court’s place to determine when a greater law is in conflict with a lesser one, the inferior law must give way.

And so, the 1803 decision that gave the Supreme Court this new power, was a flash-in-the-pan thing, and at the same time it was rooted in judicial tradition that goes all the way back to Roman times. It was a stroke of genius, really. But it was based on a cynical political ploy. At any rate, the way these things are decided now, they have very little in common with the 1803 decision.
- mkfreeberg | 06/27/2008 @ 20:14
It’s important to note the role of judicial activism in creating backlash. The Dred Scott decision is the best example of how activism divided the country, leading to the war for Southern independence. The civil rights activism of the twentieth century fueled a lot of racial backlash. Roe led to the election of Ronald Reagan, but there was not a lot he could do to alter the Court. That’s why this election is so important, especially for those of us who want the country to become united again. McCain is the only candidate who will give us a chance at that. Obama is really the only candidate who can divide America.
- JohnJ | 06/27/2008 @ 21:39

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Stare Decisis, and Panic For Sake of PanicFriday, June 27th, 2008

Stare Decisis, and Panic For Sake of Panic
Friday, June 27th, 2008