Dana Milbank is a wonderful columnist for the Washington Post. He writes here about the death of state decisis, the legal principal of respecting precedent. The six-person majority on the Supreme Court have thrown away precedent. They are drunk with power. They are free to do whatever they want with no restraint, and they are rolling back decades of social progress. They are not conservatives. They are radicals.
Now begins the era of stare indecisis.
Respect for precedent — known by the Latin stare decisis, “to stand by things decided” — had been a centuries-old cornerstone of the rule of law, necessary so “the scale of justice” doesn’t “waver with every new judge’s opinion,” as the 18th-century legal philosopher William Blackstone wrote.
But — et tu, Alito? — the Supreme Court’s radical right put the knife in stare decisis in its decision overturning Roe v. Wade and destroying 50 years of precedent upon precedent.
The dissenting justices wrote that “the majority abandons stare decisis,” an act that “threatens to upend bedrock legal doctrines,” “creates profound legal instability” and “calls into question this Court’s commitment to legal principle.”
The majority protested that it didn’t abandon stare decisis — then explained why it did: “Stare decisis is not an inexorable command. … Stare decisis is not a straitjacket.”
The burial of stare decisis leaves us, ipso facto, with a void: Which Latin phrase best describes the legal doctrine of this new era, in which judges rule by whim, not precedent? Well, thank your lucky stares, because my classics consultant, Vanessa (she asked that her surname not be used in order to speak Latin frankly), has many options.
Labels such as “judicial modesty,” “judicial restraint” and “originalism” were trashed along with stare decisis. For this radical majority to claim “restraint” now would be the very definition of stare mendaciis — to stand by lies. Other better labels for the court majority’s new philosophy are stare deviis (to stand by inconsistent things), or perhaps stare fetore (to stand by a foul odor), in honor of the question Justice Sonia Sotomayor posed during oral arguments: “Will this institution survive the stench that this creates?”
But maybe most accurate is stare sodalitate — to stand by your political party. To the Romans, this meant either “electioneering gang” or “religious fraternity,” apt descriptions both of this court’s right wing.
There are other potential principles being thrown about. This week’s Jan. 6 committee hearing revealed that President Donald Trump, upon receiving displeasing information (such as his attorney general’s refusal to bless his election lies), would hurl his meal at the wall. This would be stare cibo iacto — to stand by thrown food (although other scholars use stare vasis fractis — to stand by broken dishes).
The Republican Party, even now, remains steadfastly loyal to Trump, adhering to something called the Wynette Doctrine, stare homine tuo — stand by your man.
Sen. Susan Collins (R-Maine) is claiming she was deceived by Justices Brett Kavanaugh and Neil Gorsuch into thinking they wouldn’t overturn Roe — an instance of stare credulitate, to stand by gullibility.
At a Trump rally, Rep. Mary Miller (R-Ill.) practiced stare hominibus albis — to stand by White people — when she called the abortion decision a “victory for White life.” (She said she misspoke, although the crowd cheered.)
Congressional candidate Yesli Vega, the GOP nominee to replace Rep. Abigail Spanberger (D-Va.) said “it wouldn’t surprise me” if it were difficult for a woman to get pregnant from rape, “because it’s not something that’s happening organically,” according to an Axios recording. That’s called stare rapina legitima — to stand by legitimate rape — affirming the precedent set by Senate candidate Todd Akin (R-Mo.), who said in 2012: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”
Texas Attorney General Ken Paxton is reviving the doctrine of stare contra pedicandum (to stand against sodomy) by saying he would defend a 1973 anti-sodomy law struck down two decades ago. Justice Clarence Thomas has invited challenges to that decision, as well as others protecting same-sex marriage and contraception.
Texts show that Thomas’s wife, Ginni, meanwhile, urged the Trump White House to “release the Kraken” of false election-fraud allegations — a philosophy known as stare monstris, to stand by sea monsters.
The court’s right-wing majority might also share the belief of Rep. Lauren Boebert (R-Colo.) who said she’s “tired of this separation of church and state junk,” which she said came from a “stinking letter” by Thomas Jefferson, not the Constitution. Demonstrating stare templo — to stand by the church — Boebert decreed that “the church is supposed to direct the government.”
Another creed comes from Sen. Ted Cruz (R-Tex.) who attacked Elmo because Sesame Street encouraged coronavirus vaccination. That’s stare contra pupas — stand against Muppets.
The court’s recent rulings invite many other Latin descriptors: stare atrocitate (to stand by cruelty), stare decuriatione (to stand by intimidation), stare deminutione capitis (to stand by the loss of liberties). But ultimately a court that has abandoned precedent stands for nothing (stare nullis) except for the raw exercise of power — stare imperio. And that leads to one place: stare ruina, to stand by destruction.
Diane Then there’s Trump’s version: “Stand By Me . . . I do.” CBK
The obliteration of stare decisis is the scariest thing this rogue court has done. We have no protections. The only good thing is that without stare decisis Dobbs perhaps could be undone by a future better court should we live to see that day
Honestly, the Court decisions of the last term calls into question whether constitutional law exists at all anymore. I had an exchange with a constitutional scholar recently, and we both agreed that under this Court, the goal is to replace it with contract law. In essence, rather than have principles undergird the legitimacy of a government, everything now is in danger of becoming transactional. Rather than principles, law will focus more on the legal agreements between parties. Under this system, virtually everything has standing, so if one disagrees with any law in which one is a party to the rules, that now becomes an issue that could be adjudicated by courts without any moorings to anything other than the rules that govern contracts. It took days to inflict this damage. I doubt anyone reading this will be alive to see it undone, if it ever is, that is.
GregB “In essence, rather than have principles undergird the legitimacy of a government, everything now is in danger of becoming transactional. Rather than principles, law will focus more on the legal agreements between parties.”
I think that’s exactly right. I call it, among other things, a return to tribalism, except absent wisdom and the solid structure of a tribe with a tradition, a history, and a leader/king who has the well-being of their people in mind. It’s like having a soccer game where the referee is related to the coach of one side or is being paid by “interested” parties. It can work, regardless of all of the distractions, but it usually doesn’t and, even it does, it still looks bad to others. (Someone needs to tell Ginni that.)
The whole thing is set up so that judges can be whatever religion or adhere to any political tradition they grew up in and want to belong to; BIG HOWEVER: like the referee, regardless, they are also expected (and sworn) to adhere to the principles underlying the game, concretely played and called in fairness, and with adherence to the rules.
But I fear the whole idea is crumbling before our eyes. If I were a law school professor of any of these Yokels, I’d go hide in the swamp. CBK
On this, as with most things, we agree. Teaching constitutional law today is bordering on teaching fiction.
GregB I have been naive about those who “people” SCOTUS; as I was early on, and as a teacher for a while (in adult education also), when I worked under the assumption that our political people actually wanted what was good for ALL children (not just the white perfectly healthy, and wealthy ones). They kept sending adult education researchers back for more/more/more research while squeezing our funding and moving towards “jobs/jobs/jobs training and so-called public-private partnerships, rather than enabling a fuller education for ALL U.S. adults (ahem about how things are now with some Congresspeople). At some point the question occurs: “What’s going on here?”
And I knew it was bad, but I really had no idea until a few years ago just how pervasive and deeply rooted racism was and is . . . So I’m a bit of a “reformed smoker” on these issues. CBK
Greg An afterthought, that shouldn’t be an afterthought, about what is already be implied in your note:
Everything is reduced to what political party one belongs to, or is shunned from (like Liz Cheney presently is–we’ll see on that one, however.). What’s lost in that reduction to either/or political extremes is the workings of the truth which, though sometimes protean, also has its own Sharpie-resistant singular comportment: IS or IS NOT, yes or no.
An allegiance to the fundamental principles but also the spirit of The Constitution, the rule of law, “glue” that can bring the extremes under one set of principles. The divisions into political parties and “factions,” is supposed to be the ground from which our dialogue reaches “up” to finally come under those principles, of that place of at least potential dynamic unity where we can “live under one roof.”
Trump has reduced everything down to extremes with NO EXIT. I think we’d better clear some more space under that bus. CBK
Think you’d better examine Newt G. as the person who pushed this nonsense first. Trump was simply a cog in the existing wheel. I’m still not convinced Trump has enough brains to envision anything outside his own ego (Granted, very large). For him to be able to generate a ‘popular revolt’ would have required treating other people as people.
No, I think the buildup of hatred began well before Trump. Trump is the result, not the cause.
Daedalus I’m quite sure you’re right about Trump and those who came before him. Before Newt there was X, then before x there was xx. . . . I have appreciated your dialogue here. CBK
I think there is a special place in hell for Mitch McConnell. CBK
If there were a hell, yes, agreed.
Bob With some of your other notes from today in mind, I don’t claim to know there is a hell either (for Mitch McConnell to die for).
If I may, and about myth, I think you are giving too short shrift to both the span of history and the movements of human development (across the board) that goes on there. For instance, children ask serious questions that require answers that they couldn’t possibly understand until much later. Stories and myths, and optimistic beliefs, fill that fear-void . . until they are able to unfold them in their own time. Science, which is a horizon you probably have, didn’t come around formally for thousands of years after most religious/founders texts were written, and even after the Greek philosophers.
But children’s stories work on principles underlying developmental education that also operate when adults read novels, regardless of whether they are even plausible. More goes on there than meets the eye. We don’t have to believe in “sky-daddy” or hell to face and address our own serious religious questions in our own way. I’ve attended many “kinds” of churches. Not all but most are or have a group of people who are NOT what is so often portrayed in the news and that what too many people believe about “religious people.” (I saw someone on late-night TV selling religious water that will make you rich. They take credit cards and give us all a bad name.) CBK
If there is not a Hell, there is an especially Hellish place in Heaven reserved for Mitch McConnell.
It’s called Hellen.
I must strongly disagree. There is indisputably a hell. Mitch McConnell most certainly has a special place in that hell. He played a devilish role in creating hell — on earth.
It’s a place constantly burning with the heat of the the wildest fires that threaten the oldest and sturdiest of things, sequoias, and checks and balances. It’s a place where there is never peace and sorry souls exist in a forever state of fear of violence and longing to be able to see in the darkness. Logic is in Limbo.
Mitch McConnell is in hell, very close to the throne. All you have to do to believe is read the newspaper. Heaven of democracy is the one that seems the fable a misty eyed soul can only long for in a future state of dreaming through the twilight.
…”And dreaming through the twilight
That doth not rise nor set,
Haply I may remember,
And haply may forget”
I’d reconsider my atheism if I thought this was even close to possible. I guess this a prayer of sorts.
lol
Taking me down memory lane, Greg. I remember owning a Mayfield album.
Wonderful.
I must make one slight modification to the argument advanced in the post, however. Clearly, by this decision, Alito and the other five dwarfs mean to establish a NEW PRECEDENT, which is that all unenumerated rights are suspect and outside the authority of the federal government and must be left up to the (preferably theocratic) individual states. THIS IS A REALLY IMPORTANT POINT. They don’t want to throw out all precedent; they want to establish NEW precedents on which a fascist new order can be built. Dobbs was a revolutionary document and was meant to be. It’s extremely important to be clear about what their intention is.
And, ofc, this radical court just took a case that will enable it to decide that state legislatures can decide elections on their own, whatever vote might be taken by the people of a state. In other words, this court plans to give its ex post facto imprimatur to Trump and company’s Fake Electors scheme.
Basically, the Dobbs decision says, look, all these decades of decisions about unenumerated rights were a mistake. We need to erase that and return to historical precedent BEFORE all these unenumerated rights started being advanced. The court majority means this new take to be the new precedent for a whole bunch of elimination of rights that it will be doing going forward.
Conservatives have for many decades had the avowed goal of shrinking the federal government until it can be drowned in a bathtub. Well, that’s exactly what this court is up to. One tack (see, for example, the Dobbs decision) is to eliminate federal government protection of unenumerated rights and all the federal regulations and bureaucracies related to those rights. Another tack (see, for example, the EPA decision) is to declare what are currently administrative functions to be solely subject to legislative oversight (with the understanding, wink, wink, that Congress won’t get its act together to, for example, protect air and water and roll back fossil fuels and so on). Yet another (see, for example, the case to come next year) is to give the Extreme Court’s imprimatur to Independent State Legislature Theory, which basically enables nullification by state legislatures of vast amounts of federal law, including all laws related to voting.
Why is the court doing these things? Because it wants states to be able to establish theocracies independent of federal control.
So, this is a three-pronged attack on federal government with the aim of asserting states’ rights.
“Theocracies independent of federal control” means the abolishment of rights for all except, the top of the food chain which includes the rich and the religious leaders that they enrich.
Theocracy and colonialism- two sides of the same coin.
“. . . which is that all unenumerated rights are suspect and outside the authority of the federal government and must be left up to the (preferably theocratic) individual states.”
How can that thinking be squared with “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Art. IX
Retained by the people but recognized and exercised by the states, not by the feds, and in the discretion of those states. So, for example, there might be a right to marry whomever one wants, but it’s up to the people, in the states, via their state legislatures, to decide whether that is so. That’s the theory this court is going with. Thus the Independent State Legislature Theory case that the court just agreed to take on.
Thom Hartman wrote at Raw Story, 7-12-2022, “Most Americans- and most Christians- don’t want religious doctrine dominating our laws. So how did we get here.” A photo of deceased Jerry Falwell Sr. accompanied the article. How many people recognize Leonard Leo?
How many people know Paul Weyrich? No matter, Leo’s omission from the article is proof that the current situation is unrelated to Koch or anyone other than those in the protestant evangelical community.
Religion Prof. Athena Butler’s mainstream media reports, to my knowledge, ignore her religion. But, wow, evangelicals and public schools- now that’s a problem. She writes about evangelicals being bad in other ways.
If so many conservative evangelicals just hadn’t been confirmed to SCOTUS, America wouldn’t have a problem with religion and its laws.
Linda Articles/Smarticles. Open your mind, girl. It’s much bigger than that. CBK
“How many people know Paul Weyrich? No matter, Leo’s omission from the article is proof that the current situation is unrelated to Koch or anyone other than those in the protestant evangelical community.”
Catherine, AKA, CBK, Mary Catherine
Can you get my comments like the one posted after your attack on me July 12, 2020, at 10:48, out of moderation? (July 11, Ravitch post about Christian Nationalism)
Readers of this blog understand stacked decks. After all, some of them think the fight for public schools is rigged.
Judge Scalia suggested that the reason Hitler was able to initiate the Holocaust was because of German separation of church and state.
(Thom Hartman 12-2-2004, “Scalia to Synagogue- Jews are safer with Christians in Charge.”)
The loss of separation is clearly not so good for women in the US. Maybe Jews will fare better with the choices men like Trump make e.g. Scalia’s son in the Trump administration.
There’s no indication that a majority of SCOTUS judges think like Antonin Scalia or Koch- so it’s probably a moot point anyway. Not to worry.
“Theocracy” is absolutely the correct term.
Here is an excerpt from an article quoting GED Barbie”
“’The church is supposed to direct the government. The government is not supposed to direct the church,” Boebert told the crowd, which applauded. “I’m tired of this separation of church and state junk.’
https://www.denverpost.com/2022/06/27/lauren-boebert-church-state-colorado/”
Thanks, Eleanor
Boebert is an uneducated idiot.
Diane I was thinking perhaps someone should introduce Boebert to Hershel Walker, then point to the sunset. CBK
Great idea. Two fools. They can take Marjorie Taylor Green with them.
Why is anyone surprised at anything this court does? It says:
A corporation is a person with free speech and political rights.
A corporation has religious rights.
You are a militia unto yourself.
What ninth amendment?
Church schools have a right to public funds.
And we must remember that the SCOTUS Corrupt are NOT governing by whim nor by some cultish Catechism they were forced to recite as a child. They are adult traitors. Being paid in multiple ways to do what they are doing to our Democracy.
Cruz, Paxton, Collins, DJT, Bannon, Rt Wing Insurrection extremists all signal some aspect of The Party Line. SCOTUS Corruptus simply waits for the strategized opportunity to allow the deal to go down.
The despicable Pray To Play coach was bankrolled all the way up to their welcoming arms. Nothing is left to chance. All savagery requiring CASH to succeed, receives the necessary infusion.
No, this is not whim. This is a carefully conceived strategy to seize control while doing so is still possible.
✊
I tend to agree, and the People had better to act, fast.
Nick Patricca of Loyola University spells out the plan in an article at WindyCityTimes.com, 2-20-2022, “Bannon, The Catholic Vote, and Our Democracy.” Patricca draws the parallels to Nazi Germany and to Stalin.
Paul Weyrich, conservative Catholic, and Charles and David Koch, whose father made money during Stalin’s reign, made the perfect pairing for the destruction of democracy.
The Supreme Court also does not have to directly answer to voters. Most of the conservatives are young. They have many years to dismantle what disagrees with their ideological framework.
The court majority want to “legislate from the bench.”
I know a young man who is deeply conservative, but his views on environmental policy, LGBT issues, and right to health care are as open and liberal as one can get. The new breed of conservatism will be quite different as adults when compared to their role models.
They want to legislate with a wrench
“Most of the conservatives are young. ”
They aren’t conservatives, they are xtian fundie regressive reactionaries. I’d bet a dollar to a dime that the majority of posters here are more conservative than those reactionaries.
stare excrementis
Quae semper nos decicis
Omnes cacat
Love it!
Great post! Sometimes my High School Latin comes in handy (not often).
Isn’t it interesting that when Doctors and Lawyers want to produce ‘excrementis’ they do so by using Latin? I find this particularly interesting because I recently learned that the ‘language of science’ in southern Italy during the 13th century (or there abouts) was Arabic. Hmmmm.
Doctors, lawyers and _______
That’s cool, Daedalus. A few years ago I enjoyed a history-mystery book series where a king of England from those times sent secretly for a physician/ medical examiner from Salerno to help with threatened political plots/ assassinations etc. [Chick lit: she turned out to be a woman, which was a “thing” in that medical capital of medieval Europe]. I’ll have to dig them out & re-examine. The medicine was definitely plant-based [Greece to Rome to Islam then outwards].
“Stare stare night”
Stare stare Right?
Scary scary Right
Good one! So true!
They don’t believe in precedents. Only in Presidents and even then only in Republican ones.
Stare Deciders
Supremes believe in Presidents
Like Reagan, Bush and Trump
They don’t believe in precedents
And haul them to the dump
Am I just getting old and nostalgic, or did anyone else get misty-eyed and feel a bit bucked up by Rep. Raskin’s summation today?
Not just you. THAT was an excellent closing statement and something that should be taught (but won’t: “too political”) in schools.
If I were teaching government today, I know what my class would be watching and discussing tomorrow. Well, if I were a teacher who actually had the freedom to teach, that is. I’m going to print out a copy of it, it’s a keeper.
GregB ME TOO about my reaction to the speech. CBK
I did. Then, I read Scalia’s 2004 speech where he suggested that Hitler was able to initiate the Holocaust because of German separation of church and state. (“Scalia to Synagogue- Jews are Safer with Christians in Charge” (12-2-2004). With certainty, I know Kertzer’s new book, if Scalia had read it, would be seen as an erroneous outlier of research. It’s a popular opinion.
The benefits of an end to church-state separation for women in the U.S. has proven to be a bit problematic.
But, Jews, a definite yes. Gay people, a definite yes.
Rage Against the Machine said pretty much the same thing a couple of days ago in their first concert in eleven years:
Hey, Linda…
Not everyone adheres to a ‘religion’. Some of us are either atheists or just don’t give a **ck. In fact, only a very small percentage of the American public attends any church regularly. So, please, give a little credit to ‘agnostics’ and ‘atheists’ who happen to be the plurality of our citizens.
Don’t get me wrong. I don’t mean this to be a criticism of Jews, or Muslims, or Catholics, or whatever. I’m just sayin’ that it’s about time those who either don’t care or are anti-god get to exert their opinion without being ‘damned to hell’ by the political establishment.
Will agree, however, some religions are worse than others. I have an Astronomy degree, and have a pretty good grasp on the negative impact of the European church. Not nice. Killed a lot of people. Personally, I think the world was better off before monotheism.
Daedalus About atheism, etc., in earlier notes here I have responded to such thinking from a philosophical point of view which, in its cognitional theory, shows that all human beings wonder and raise questions about (to put it in its most general terms) the before, the beyond/after, and the unknown.
That atheists and agnostics, etc., think as they do does not mean they or you haven’t or don’t raise those type of questions. (The answer is no or I don’t know.) In that, we humans have had a capacity to wonder about where we came from, what we are and mean, and where we are going after death, if at all, for a very long time. So, my view is that philosophy, theology, and religious viewpoints all emerge from that human reality and are related in that regard.
Historical religions and every corner church in America, are answers to that set of questions. But I have never NOT considered such regions of thought and, on the international scene, many churches and groups are heavy into ecumenical and unifying communications . . . my guess is that many (maybe here?) are unaware of that movement, not that they need to be. CBK
First, ‘ecumenical’ and ‘unifying’ are polar opposites, particularly if one disagrees with the ‘ecumenical wisdom’. Secondly, the ‘church’ is not a fountain of philosophy. I find Aristotle far more aware, and many before him.
Got a great book for you: ‘The Closing of the Western Mind’ (Charles Freeman). Perhaps you’ve already read it. Subtitle: ‘The rise of faith and the fall of reason’. On the cover, we see a painting of St.Thomas Aquinas with his heel on Aristotle’s body.
By ‘reason’, of course, Freeman meant not just deductive logic, but (more importantly) inductive.
In the painting, St. Thomas was stamping down on Aristotle, and a lady near him was pointing up (to God). Yep, the painting says a lot, but so does Freeman. It’s like a quick course of Gibbon, but brought a bit up-to-date.
Daedalus Especially in the Catholic Church, there is a rich intellectual and philosophical tradition, e.g., (as you speak of) Thomas Acquinas, and Augustine who both draw on the Platonic/Aristotelian texts. THAT history is itself fascinating.
Also, perhaps I should have used the term “relational” or inter-relational, instead of unified. The point is the discourse goes forward in earnest. (Thank you for the reference.) CBK
Greg
Thanks for the video.
Daedalus-
I agree that conservative religion exerts far more political power than it should. Bob Shepherd wrote above, “theocracies independent of federal control.” What that means is red states will take away the citizens’ rights that are secure in western democracies.
If there had been greater vigilance about the political merger in support of the GOP by evangelicals and conservative Catholics, there would be more hope now. Pat Buchanan posted a piece written by Ryan Girdusky (2014, but, still up) that describes the significance of Judge Scalia.
Daedalus-
My apologies for the cosmos’ ordering of comments. My post (don’t think it went into moderation) was timed 7:14 but, it found itself appearing after ones clocked at 7:19, 7:46 and 7:53. Sometimes randomness …
Yep. I’ve found this platform irritating at time. First, there’s the fact that you can’t reply directly to many comments, and secondly you can see the comment after responding that you want to reply without remembering perfectly, or without scrolling through the entire ‘discussion’ to find the bit, and then back down to comment.
I’m sure I’ve posted plenty of comments in the wrong place. Frustrating.
His opening statement was also gas.
I’ve watched this five times. It just gets more profound with each turn. We must all internalize and act upon his final sentence. We’re on a new Doomsday Clock, one in which democracy, not nuclear annihilation is at the center of our discourse to preserve our democratic-republic.
“demagogues…pandering to the malignant then, end up as tyrants”-
Nick Patricca describes Bannon who is the poster for Raskin’s quote by Alexander Hamilton. (“Bannon, The Catholic Vote, and Our Democracy”, 2-20-2022, WindyCIityTimes.com)
Stare Intotheabyss
When you replace stare decisis with stare Intotheabyss, the abyss stares back at you.
lol
Brilliant! Thanks.
OMG, classic.
Agreed
The break with the 9th amendment as a part of the Dobbs decision is the part that is worrying. We have done many atrocious things along with our heroic ones since the adoption of the constitution. There have been occasional stretchings of the constitution. But no decision I know basically came right out and disparaged another part of the constitution except to correct specific problems (as in amendment 14 negating the 3/5 designation). What Dobbs does is to essentially wipe out all but stated freedoms in order to destroy the existence of abortion.
Wow! We knew conservatives had one issue, but we had no idea what they would do to attain their goal
Roy, I respectfully beg to differ. The point of the Extreme Court ruling is not to say that there aren’t, possibly, other rights, is not to negate the 9th Amendment, but to say that it’s not up to the federal government to decide what other rights exist but, rather, to the states. In other words, the point of what the court is doing is to return all this authority to individual states, many of which (Tennessee, for example), will become, under the new legal order that the court is establishing, theocracies that do not recognize, for example, the right of same sex couples to marry or the right of everyone to vote.
Tendency
Ten Commandments
Tennessee
Ten Amendments
Banned, you see
Bob: so Is allowing states to decide these other freedoms a vehicle for destroying the idea of unnamed freedoms that transcend state government? Why have the 9th in that case?
Bingo. You hit the nail on the head, Roy. This is what is wrong with the Constitutional theory held by the sick six. The founders’ idea was that there were rights discoverable by reason that existed as a matter of natural law–of the way things are. This isn’t as crazy a notion as it might at first seem to be because, for example, harms are as much facts of nature as is, say, the chemical makeup of water is, and it is perfectly reasonable to say that people chose to be governed at least in part in order to shield themselves from harms.
This theory of natural moral law is, ofc, widely scoffed at today (a contemporary philosopher of science like Daniel Dennet would call it silly) and simply given lips service and nothing beyond that (by all the fascist Repugnicans who pretend to be patriots but eschew such principles in practice).
So under this scotus interpretation of states’ rights, my fundamental rights will be determined by which state I live in? I can get an abortion in state A but not B. I have the right to marry the person of my choice in state A but not B? I may bite in state A but not B? This is a long step backward.
That is precisely my understanding of where the court is coming down on this. Their reading: There are rights retained by the people. These are unenumerated in the Constitution and therefore not a legitimate subject of federal authority. It\s a bizarre notion that leads ineluctably to the logical contradiction that you so clearly articulate, Diane–to rights that are fundamental but not universal.
It appears to the naked eye that the Court’s assumption that unenumerated rights do not exist is a violation of the 9th amendment.
Diane That language that reverts to the people: “. . . shall not be construed to deny or disparage others (rights) retained by the people,” implies that there ARE rights.
It assumes the presence of rights and doesn’t say those rights need to be enumerated anywhere. It implies it’s up to the people to decide what those rights are, and not that there aren’t any. Another way to say it is that the Amendment openly recognizes an arena of freedom and creative change that is NOT controlled or disparaged or denied, or even commented on, by the law and the Courts. And it is a stab in the heart of the creative spirit and the public arena.
We think Trump and his plutocrats were trying to destroy democracy. But whether those political Neanderthals on the Court understand what they have done or not, their “construal” is up there with the OTHER biggest power plays in history. CBK
CBK: that’s exactly my point. The language of the 9th amendment says that there are many rights not enumerated in the Constitution. The failure to enumerate them does not eliminate them.
Diane I guess if we are not able to “keep democracy” it will be because we elected a sociopath severely stunted grifter to the highest office in the land; and then we put idealogue judges (plutocrat enablers) on the highest court in that same land, who understand neither what “freedom” of the people means or the actual function of the laws in a democracy.
What could go wrong? CBK
Diane I’m still signed on to this particular thread; but I’ll miss the dialogue and being in communication with so many wise minds here on your site in new threads, even though it does take away from my limited writing time.
However, I find that I can stomach no more having Linda’s obsessive cxxp showing up on my board every day, especially when I feel I offend you or others by responding and revealing her constant distortions.
The situation only mirrors how a lack of understanding, coupled with a formidable bias and political zealotry, and a public platform for expression, can twist truth around like a hairball, and so is so very dangerous, so that it rivals the “other side” for its potential to “spread” itself like the cancer of half-assed ignorance that it is. This has otherwise been a good thread, I think. But if it keeps going, I’ll sign off entirely to get Linda’s garbage thinking off my board.
I appreciate your work. Keep it up. And say a Big Catholic Hello to your partner. CBK
yes. Alito has it all wrong and so obviously so that he thereby reveals his willfully blind, hidebound, backward, completely ideological approach to legal interpretation.
I pledge allegiance to one of, fifty nations, under vetted gods, quite divisible, with preference for some.
Daily Beast posted an interesting story about a frequent guest on Fox’ Hannity show, Rev. Jesse Lee Peterson. Hannity is on the board of a Peterson organization that “stands for the values of God.” Hannity described Peterson as “the most courageous, outspoken critic of the liberal left…in America today.”
The reverend promotes the conservative agenda in the Black community. One of his speeches was titled, “How most women are building a shameless society.” Of course, he was charged with being a misogynist which is familiar ground for the religious right. Daily Beast adds the reports of an allegation against Peterson that will vex conservatives.
Given GOP support for the promiscuous Trump as well as Herschel Walker (three newly acknowledged children in addition to the one he acknowledges), they are unlikely to be shocked by anything. They see people as vessels for their agenda.
They see women as vessels for their illegitimate children.
Good one Poet!
Peterson infamously said, “Allowing women to vote was a mistake.”
John Bolton made a comment to the press that Trump did not plan a coup because he isn’t capable of planning but, rather, moves from one half-baked idea to another. Here’s what Bolton got wrong:
Obviously, Trump is incapable of planning a trip to the toilet, much less a coup. He is, after all, an utter moron. However, that doesn’t mean that he didn’t TRY to effect a coup. In fact, he did. In fact, he tried to effect a coup in several different, parallel ways. And to the various charges that he is guilty of, you can add the charge of treason. Yes, treason. Why? Well, one who abets an enemy attempting to take over the government of the United States commits treason, and not only did the Proud Boys and Oath Keepers abet Trump, but Trump abetted them. So, you can add the charge of treason to several counts each of obstructing an official proceeding, defrauding the United States, and seditious conspiracy.
We know we are in trouble when John Bolton has become the voice of reason.
Dumbya, too.
SOMEdam yes about John Bolton. And Ronald Reagan used to be on the Right. CBK
yup
But Bolton was trying to absolve Trump by saying that he wasn’t capable of planning a coup. That’s idiotic on Bolton’s part, and that’s my point. The fact that Trump did BAD planning doesn’t mean that he didn’t do planning. Suppose that I want to water a plant and I decide to pour water into a coffee filter and use that container to carry the water to the plant. That’s really bad, stupid planning. Obviously, the water will leak out of the coffee filter. That planning so bad that one could almost say that it’s not planning at all. Almost, but not quite. The activity was planned. It was just planned really, really badly. So, my point was that Bolton is NOT in this case the voice of reason.
If Trump were a better planner, he would have joined the mob into the Capitol, hung Mike Pence and Nancy Pelosi, killed various members of Congress and declared himself president for life. Mitch McConnell would have gone along.
Diane Apparently, besides McConnell, apparently there is a cadre of Republicans who would have “gone along.” CBK
Wouldn’t surprise me a bit if he did. If the current run of Republicans tells us anything, it’s that no low is too low for the Limbo Party.
Bob I think that intelligent acumen is intimate with but distinct from one’s moral, social, political, and/or spiritual development. If so, our intelligent acumen will necessarily be at the service of whatever present moral, social, political, spiritual horizon we have made of ourselves. (Think technofascists, for instance).
In other words, Trump can be an “idiot” (morally/socially/politically, spiritually) but be quite intelligent (manipulating others, etc.) insofar as his intellectual acumen is at the service of the “idiocy” of his more comprehensive comportment (low-life whole-developmental state). Or an intelligent thief is one who knows how to steal from others without getting caught. There ARE of course, different forms, manifestations, and blocks to one’s intelligence . . .
I think the Commission yesterday gave Trump a tacit “out” in the form of having lived across the line of not only corruption, but also of mental illness. CBK
Trump is not intelligent. He can barely formulate a sentence. He can barely read. He is ignorant of almost everything. He’s just a bully and a con man who started out with enormous privilege and then relied on mobsters and mob tactics to get what he wanted.
Remember the Teflon Don, John Gotti? The press created a whole mystique about him. The brilliant guy manipulating everything behind the scenes. But then the FBI released the tapes of its wiretaps of Gotti. An utter moron. Idiotic comments. Racist. Violent. Sexist. Utterly ungrammatical speech. Incapable of articulating a coherent thought. One expletive after another. And enough money to buy lawyers and muscle to enforce compliance.
Trump, the Teflon Don 2.0, is his brother from another mother. The guy is an imbecile.
Bob I’m speculating about the specifics of Trump; but am also saying that we can understand the distinction between intelligent acumen and the other developmental aspects of our interior life and perhaps shed light on the question of Trump’s ability to plan, etc., but yet be so “idiotic.” That understanding can help us further understand how someone can, for instance, plan an event as Trump apparently did (unlike Gotti who sounds like he is just plain unintelligent), and let their absence of development import on or even quash their otherwise intelligent acumen, like surrounding himself with those who would support what he WANTS, and getting rid of those who disagree with him.
My guess is that somewhere in his head, he at least hears the whispers of his own recognition of the rightness of those he “threw under the bus” but runs away from the threat to his self-interpretation.
It seems Trump’s ingrained ideology is that he cannot fail or be crossed by the disloyal (by his view of what those means) regardless. And so AS solidly entrenched, the ideology closes his intelligent functions down especially when the situation threatens that ideology. Such situations make it easy, even necessary, to explode and, for instance, have a tantrum and throw food against the wall. But I’m just speculating here. Too many things occur that fly in the face of “total dumbness.” CBK
Trump didn’t plan anything. He bellowed and whined and gathered around himself a bunch of fruitcakes dumb enough to see things his way, none of whom had any ideas that had a remote chance of being successful because they were off the charts fruitcake notions (the Italians or Venezuelans were controlling the voting machines, we can simply appoint our own electors, etc).
Trump didn’t plan anything in any sense that a person of normal intelligence would call a “plan.” His idea of a “plan” was to call up Brad Raffensperger and scream at him to just find 11,700 votes (or whatever it was). This kind of “planning” (just screaming at people and paying them to get things done) has evidently worked for Trump in the past, until it didn’t, as when all his freaking businesses went into bankruptcy or were closed down by the courts and he had to turn to money laundering for mobsters to keep himself solvent. He’s an utter moron. An imbecile. He can’t talk for more than two minutes without making that obvious.
Bob I think Trump just thinks his use of his power (“You’re fired.”) always worked for him before (and it did), and he is (still) unable to think beyond is own ideological wall: I cannot lose. Period. And so whatever intelligence he does have is slave to that prism. What comes out the other side is so very twisted to anyone who knows they cannot control reality with a Sharpie. CBK
Maybe it’s just me but what appalled me most about Cassidy Hutchinson’s testimony was that Trump threw his plate at the wall in the White House private dining room. Catsup on the walls and floor. Not the first time it happened. And then there were times when he pulled the tablecloth off the table and all the plates and food hit the floor.
That suggests a gross man with a raging ego and temper. And utter contempt for others.
Diane Me too . . . I am appalled and have been, again, suffering in a state of having been gob smacked for a very long time. And forgive me, but I am speculating about a particular person (Trump) in terms of not merely psychological but of philosophical theory.
In that context, ideology is about knowing . . . it’s from built up a severe kind of dogmatism where the analogy is an interior wall or rock of erred knowing set-in so that it blocks and comes out fighting about any questioning whatsoever that would counter it. But also, normative intellectual process towards knowing what may or may not actually be true-real. I mean by that: in the concrete moderate sense of even being able to consider reasonable evidence in particular situations towards self-correction and a richer knowing. Trump is apparently totally closed to even considering such evidence . . . i.e., he already knows (a “hard” dogmatism) that he cannot lose so his “foreknowledge” defines and guides everything else in his purview.
(It’s a philosophical interpretation because knowing-the good-truth-reality-being, and so dogmatism, are all philosophical concerns that are intimate-with but different-from merely psychological aspects of human interiority.) . . . probably shouldn’t have brought it up. CBK
Glad you posted again. I have another book you may have read, but if not you might want to give it a try. It’s “The Dawn of Everything” by Graebner and Wengrow”. A fascinating take on various human ‘civilizations’ based upon archeology. The main thesis is that after Europeans closed their minds, they failed to notice that many people, in many parts of the world, had been living using many different social models for tens of thousands of years. They only saw things through European eyes, and were (maybe still are) incapable of empathic understanding.
As I think I said, I was an Astronomy major in the early ’60’s, and almost everything people were finding in the sky was odd, a mystery. Therefore, I learned (and enjoyed) the idea that an unexpected event is an opportunity to learn and expand our horizons.
Loved this book.
Daedalus Thank you again for the reference . . . no, I haven’t read it, but it sounds interesting. Some of my best and most memorable insights have come from reading scientists as they work through their fields of interest. (One thing I got from my liberal studies program was overwhelmed.) My directed interests don’t match the time I have here on this earth, but I keep going.
It’s an older reference, but have you read Kuhn about scientific revolutions? CBK
Thanks, CBK. Haven’t heard of Kuhn. I have four books on my nightstand now, but I’ll try to order Kuhn.
Speaking of ‘scientific revolutions’, Copernicus was NOT a revolutionary . Aristarchus thought the Earth revolved around the Sun. Copernicus was very timid when asking Rome to allow him to publish this ‘heresy’. Rome agreed. After the Martin Luther, thing, however, Rome became a bit more defensive. Similarly, Galileo was almost counter-revolutionary (he defended Copernicus in the face of the actual, radical revolutionary, Kepler). Both Copernicus and Galileo adhered to the idea that, since the ‘heavens’ were perfect (no beginning, no end), that everything there had to move in ‘perfect’ circles. Kepler, on the other hand, stated that moving in an ellipse was a far more accurate way to describe the motions of planets, with the added benefit that it put the sun at one focus of the ellipse, thus allowing Newton to focus on the sun as the source that moved the planets.
But, I digress even further, so let me get Kuhn before I comment.
Daedalus Kuhn helped along a mini revolution in philosophy, which has not settled itself in history yet, though at some point, it will. But I know about that pile of books thing . . . . CBK
Just how dumb does one have to be to have lived 70 years and believe that stealth airplanes are actually invisible or that the Continental Army captured the British airports? To think that injecting disinfectant might be a great idea? Not to understand why the Border Patrol or police can’t simply shoot asylum seekers and BLM protestors?
The guy is a moron. It’s clear enough why he has threatened his schools about releasing his grades or test scores, why he doesn’t want anyone knowing what he got on the SAT or what his IQ score is. If he has an IQ anywhere above 75, I would be surprised. I suspect that it’s even lower. Impaired. He’s really, really not very bright.
Bob Never mind. But it’s obvious after the Report yesterday that Trump did plan, and WAY ahead of time. For instance, a long time ago he knew Biden could beat him at the poles. It looks to me like his planning has been quite incisive.
My hope, however, is that those witnesses yesterday will have their influence on other regular working Americans like them who seem to have great commonsense when they put their minds to it, and who apparently are angry, but also gracious about being duped by their man. CBK
It’s clear from the reports yesterday that Trump knew he was going to lose and that he totally freaked and started denying it and started screaming at everyone that this couldn’t be allowed to happen and attracted some fruitcakes like Guiliani and Powell and Eastman and Lindell and the Overstock Guy and some slimeballs like Cruz and Hawley and THEY came up with a bunch of crazy ideas that didn’t work. This is not the work of an evil genius. LOL. It’s a child man throwing a tantrum. It was a totally cuckoo coup. It was Guiliani with hair dye dripping down his face at the press conference in the parking lot next to the porno shop.
Bob I think you are right on that one. And most of us were so gob smacked by the whole thing . . . IT JUST COULDN’T HAPPEN! . . . that we quite literally froze for a very long time. I think for most of us, if we made THAT normal, we’d just keel over and die from moral/political/spiritual suffocation. We’d have to rewrite/update 1984 and other right-on works of art. Remember that woman standing in her house surrounded by her books, while everything burnt down around her. CBK
Daedalus: Kuhn’s notion is that there are periods of so-called “normal science” in which people understand things in terms of a dominant paradigm but then someone discovers an anomaly that doesn’t fit that paradigm and a scientific revolution occurs that leads to a new period of normal science. Think, for example, of the 2-slit experiment or the Michelson-Morely experiment and their consequences for classical mechanics. Or think of the shift away from Behaviorism to Cognitive Science in British and American psychology. Kuhn was responsible for popularizing (in philosophy of science circles) the notion of the paradigm shift. One takeaway from this: scientists, like everyone else, tend to be hidebound, stuck in their existing ruts, until they are jolted out of them. Ofc, they aren’t as messed up as religious people in this respect because at least scientists admit the possibility of being in error. In fact, another very famous philosopher of science in the 20th century, Karl Popper, posited that what makes a proposition scientific is not that it has been proven to be true but that it is falsifiable. Propositions that are not potentially falsifiable are not, according to Popper, scientific. So, the notion of self correction is built into how science operates. This is not the case with how religion operates. Rather, it posits absolutes and then rationalizes in order to cling to those when they have been falsified. (No, there is not a hell below our feet; no, there is not a golden city above the dome of the sky. LMAO.)
Bob Nicely said about Kuhn; and thank you for the link. CBK
Well, CBK, that sounds like the history of science, to me. The goal of real science is to find the anomaly, and then resolve it into a new vision. The most exciting thing to a scientist is to identify the anomaly (means a Nobel Prize).
Daedalus If you read Bob’s long paragraph on Kuhn, towards the end he talks about the difference between science and religion in terms of knowledge and belief. If we put that distinction on a vectoral graph, we can understand empirical science as on the from-below-upwards vector /\; whereas, we can understand religious meaning (throughout history) as on a from-above-downwards vector \/. I say “religious meaning” to distinguish between knowledge proper . . . meaning: with empirical evidentiary protocols regarding specified data . . . and belief as such which has many meanings, but generally to take to heart or to hold dear.
While much more could be said on the matter . . . indeed, it fills libraries . . . putting the differences on a vectoral analysis helped me understand WHY conflicts abound throughout history.
But to tweak the situation with a bit of dialectic, much of science also rests on a good amount of belief (e.g., that a slide rule works without having to personally repeat the math); while for the religiously faithful person, religious knowledge, though quite different, exists and comes from many sources; but is rooted in a different across-the-board horizon of personal development; and so, an empirical base, if there is one, is dependent on that horizon and not on what scientists commonly take as “empirical evidence.”
As Bob seemed to be saying (correct me here if I am wrong), however, many who claim to be, and maybe actually are, seriously religious, to their own detriment, confuse scientific/ empirical knowledge with religious belief and, worse, with faith.
Interesting to me is that science (with Kuhn) remains open ended, and so is potentially a view that can be shared with even the most (and I think authentic) religious among us.
But the contingency is: IF everyone is humble about it . . . and we are talking human beings here in both venues of thought; and THAT consideration is no small thing, which also points to the empirical fact that we are all still in a to-be-known situation and not “somehow” outside of being and the universe, “somehow” peering at it from some fake place. Back to philosophy. CBK
Asimov put it this way: “The most exciting phrase to hear in science, the one that heralds new discoveries, is not ‘Eureka!’ but ‘That’s funny.'”
Yep.
I don’t think this was a ‘new’ idea in 1962. In fact, in 1960-61 I was taught this general idea. Arthur Koestler proposed the same idea years before (The Sleepwalkers). Koestler thought these ‘anomalies’ were the important factors in moving scientific understanding. My Astronomy Prof, at the time, understood the importance of Koestler’s framing for understanding science. After all, the history of Astronomy is one of changes in the established order (over hundreds or thousands of years), some rather jarring.
Kuhn is coming, however I’m not expecting to get a different perspective. We shall see. I’ll be looking for stuff I hadn’t learned by 1962.
On the other hand, Kuhn might have been a revelation to ‘liberal arts’ majors. As I said, I’ll read his book and decide.
Ofc this was not a new idea. What was considered radical at the time was Kuhn’s implied critique that scientists tend, when in their “normal science” phase, to buy into the party line in an excessive way, just like other true believers. And these include practitioners of hard sciences, like the physicists who dragged their feet about accepting the atomic hypothesis.
No, Bob. That’s not generally true. Some scientists may have been de-sensitized and thus ‘blinded’, however in my field, most were looking for incongruity.
There’s a difference between ‘engineers’ (believers) and scientists (skeptics) that most people don’t understand. Perhaps because both use (upon occasion) math.
But, I’ll read the book.
It’s pretty hard to argue with the contention that there are periods of normal science and then periods of revolution. I agree that it is in the true scientific spirit to be skeptical, but scientists are human, too, and it’s easy to become complacent. People especially have a difficult time giving over views that they took some part in formulating. Many, many examples of this throughout the centuries.
Not sure what you mean by ‘normal science’. To me, ‘normal science’ is (by definition) revolutionary. One doesn’t engage in inductive logic in order to preserve the status-quo.
I think there are many who know very little about ‘science’ who feel free to demean in order to overcome their insecurity.
One doesn’t engage in inductive logic in order to preserve the status-quo. That’s very well said.
However, Kuhn is a first-rate thinker, and The Structure of Scientific Revolutions is one of the seminal works of scientific philosophy of the 20th century, up there with Karl Popper’s The Logic of Scientific Discovery and Thomas Nagel’s “What Is It Like to Be a Bat”?
Again, Kuhn is the fellow who popularized the phrases “paradigm shift” and “normal science.” It’s not often that a phrase or concept from the philosophy of science becomes a major meme.
Normal science is science practiced according to an accepted paradigm. E.g., classical mechanics, which gave way to and was subsumed by special relativity, general relativity, and quantum mechanics.
So, normal science, anomaly leading to paradigm shift, leading to a new normal. So, there was Aristotelian mechanics. Then there was Galileo’s discovery that if you oiled balls, they went further, and his speculation about a perfect oil (completely reducing friction) leading to the ball never stopping (formulated by Newton as his first law of motion–that an object will continue in uniform motion until acted upon by another force). Aristotelian mechanics–>anomaly–Galileo’s balls on inclined planes going progressively further with finer and finer oil to reduce friction–>leading to a paradigm shift to Classical Galilean/Newtonian mechanics. For a discussion of this history, see Einstein, Albert, and Leopold Infeld. The Evolution of Physics. Cambridge UP, 1938. There is a later edition, revised and with an introduction by Walter Isaacson, 1967.
On a final note, Bob. Scientists in 1962 were far more aware because many had been duped into creating the Atomic Bomb. Thus, they had generated a penchant for self-reflection. Kuhn may have been reporting, but he wasn’t leading.
But, I’ll read the book.
At any rate, Godel and Kuhn and Popper are probably the most important philosophers of science of the 20th century.
Bob Not as well-known, but FWIW, I would add Bernard Lonergan to that list (Insight, A Study of Human Understanding, 2000). CBK
Daedalus:
Click to access Kuhn-SSR-2ndEd.pdf
But I’ll let Donald speak for himself:
“Look, having nuclear—my uncle was a great professor and scientist and engineer, Dr. John Trump at MIT; good genes, very good genes, OK, very smart, the Wharton School of Finance, very good, very smart —you know, if you’re a conservative Republican, if I were a liberal, if, like, OK, if I ran as a liberal Democrat, they would say I’m one of the smartest people anywhere in the world—it’s true!—but when you’re a conservative Republican they try—oh, do they do a number—that’s why I always start off: Went to Wharton, was a good student, went there, went there, did this, built a fortune—you know I have to give my like credentials all the time, because we’re a little disadvantaged—but you look at the nuclear deal, the thing that really bothers me—it would have been so easy, and it’s not as important as these lives are (nuclear is powerful; my uncle explained that to me many, many years ago, the power and that was 35 years ago; he would explain the power of what’s going to happen and he was right—who would have thought?), but when you look at what’s going on with the four prisoners—now it used to be three, now it’s four—but when it was three and even now, I would have said it’s all in the messenger; fellas, and it is fellas because, you know, they don’t, they haven’t figured that the women are smarter right now than the men, so, you know, it’s gonna take them about another 150 years—but the Persians are great negotiators, the Iranians are great negotiators, so, and they, they just killed, they just killed us.”
Even after the mob stormed the Capitol, 147 Senators and Congresspeople voted not to certify electors. This is complicity in insurrection.
Bob, that may be the second most astonishing fact about that astonishing day. The first is that it happened.
Agreed. It’s completely shocking but almost never mentioned.
And just because someone’s ideas are fully baked does not mean they are not dangerous and foolish.
John Bolton is proof of that.
Ah. I get what you were saying now, SomeDAM. But I don’t think he had fully baked this. I think he is trying not to be perceived as a complete turncoat by the MAGA right.
Let me be as clear about this as I can be. My reading of what the Extreme Court has been up to is NOT that it means to do away with the doctrine of stare decisis. No. It means to establish, with Dobbs v Jackson Women’s Health and West Virginia v. EPA, in this term, and with Moore v. Harper in the next term a new set of precedents designed to fulfil the conservative goals of a) shrinking the federal government down to a size at which it can be drowned in a bathtub and b) turning over power to state governments, many of which will be de facto theocracies under the new legal order. Dobbs provides a template or boilerplate for eliminating whole bodies of federal law and regulation related to unenumerated rights and with these these agencies and departments that do that regulation and enforcement. WV v. EPA is a template or boilerplate for eliminating government agencies or departments (or parts of these) that promulgate regulations pursuant to Congressional legislation on the basis of an argument that Congress can’t turn such decision-making over to Executive Branch agencies or departments because the Constitution insists that these are legislative matters. The idea, again, is to shrink the power and authority of the federal administrative state in full knowledge the fact that Congress,being divided, will not step into these various roles (will not, for example, agree on real climate change). And again, the effect of that will be, with the federal executive and legislature and courts all out of the picture, to turn all this power back to the states. And, finally, Moore will enable the court to rule that the feds cannot pass legislation to protect voting rights because determination of how voting is to be conducted is entirely up to state legislatures under this extremist reading of the Constitution. Again, the effect will be to eliminate federal power and agencies/departments and turn this all over to the states.
All this is revolutionary and is meant to be. It’s the fulfillment of a dream that conservatives in America have had for a long, long time. They have long believed in state’s rights, in the federal government being a monster not envisioned by the founders. This Extreme Court is simply making good on that.
And, btw, as with the various coup methods undertaken by Trump and his team, this has all been discussed on Steve Bannon’s War Room podcast (or whatever he wants to call it). He recently devoted much of a program to this very topic: the ways in which work is underway to completely “dismantle the administrative state.”
Conservatives have been making these arguments for a very, very long time. Now, finally, after a century of making these arguments about the federal government being illegitimate, they finally have a supermajority on the court that agrees with them. They see the current program to shrink and drown the federal government as returning government in the U.S. to its original principles after a long period in which it veered off into weirdness never conceived of by the founders. THAT’S the argument that, for example, the conservative legal scholar James Q. Wilson spent much of his life making.
Know your enemy, folks. And don’t underestimate him.
In short, this court is in the process of establishing precedents that amount to a legal revolution that they believe returns U.S. government to something like what was envisioned by the founders–primarily independent state governments in loose federation. So, the Extreme Court will claim to be reaffirming precedents, but ones from long, long ago, before the courts derailed and created a huge federal government that can have its hands in everything, from marriage law to regulation of tobacco and wetlands.
Those of you old enough to remember the Civil Rights Movement of the 1960s will understand what I mean when I say that this could most appropriately be designated The Nullification Court.
The Original Sin, according to Conservatives, was the expansion of federal government via generous interpretation of the Interstate Commerce clause, Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
I suppose that means taking us back to the original ‘Articles of Confederation’, which proved to be a disaster. These Law Students need to learn their history. These narcissists need to be kicked out (or at least diluted to the point of ineffectiveness).
Well said, Daedalus.
The Supreme Court is NOT supreme:
The conservative “originalists” on the Supreme Court can find no more original authority on our Constitution than James Madison, whom we honor as “The Father of the Constitution” — and James Madison recorded in the actual minutes of the Constitutional Convention of 1787 that when writing Article III, the intent of and the understanding among the delegates was that “the jurisdiction given [to the Supreme Court] was constructively LIMITED TO CASES OF A JUDICIARY NATURE” and did not include issues of constitutionality.
Thomas Jefferson, author of our Declaration of Independence, pointed out: “The question whether the [Supreme Court] judges are invested with exclusive authority to decide on the constitutionality of a law…there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
Founding Father Jefferson also pointed out the very real danger to our republic of allowing the Supreme Court the non-constitutional power to decide the constitutionality of laws: “Our judges are as honest as other men and not more so,” Jefferson noted. “They have with others the same passions for party, for power, and the privilege of their corps…and their power is all the more dangerous because they are in office for life and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots” and “Experience has already shown that the impeachment it [our Constitution] has provided is not even a scare-crow…The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Since the Constitution does NOT give the Supreme Court any authority to decide on the constitutionality of laws, where did the Court seize the authority that it claims to have? Well, the Court GAVE ITSELF that alleged authority in its Marbury v. Madison ruling.
Must be nice to give yourself constitutional authority that the Constitution doesn’t give you.
When the Court gave itself that unconstitutional authority, Jefferson sadly said that it was “the end of our democracy.”
He was right, as is clear today.
And the REASON why the Supreme Court has been allowed to get away with unconstitutionally making constitutional decisions is because with the Supreme Court doing the job for them, members of Congress don’t have to pass often unpopular laws — they can let the Supreme Court do the dirty work and then the members of Congress can say to their voters “See — it’s that terrible activist Supreme Court that has done this, not us.” In short, allowing the Supreme Court to make the hard decisions gets the cowardly Congress off the hook with voters.
quikwrit I appreciate the Jefferson quotes . . . making the Amendments that refer to our rights and freedoms, as in #9, all the more important. The powers that the Supreme Court have appropriated for themselves belongs to the people. “Stealing” is hardly hyperbole in such a case as this one. CBK
Thanks, Cathy,
I slightly remember (I’m almost 80) a story that Franklin was asked (after the Constitutional Convention) ‘What kind of government do we have?’. His response was, ‘A Republic, if you can keep it’. Can we? What will it take?
Daedalus and Bob FYI, below is a link to some relatively new research, posted to AEON online magazine, that I thought you might find inspiring; though I think it will only enhance what Bob already knows. I also found the after-article reader responses to be quite thoughtful.
Don’t you find the odd coincidences, in threads of thought in various real-time events, also call out responses of the type: “Now that’s funny.”
As my own mini comment, there are many kinds of biases out there. This article treats but one that is, nevertheless, long-standing and thorn-in-the-side of any collaborative movements that otherwise could put all fields of inquiry forward. The writer’s books also give treatment to religious consciousness. CBK
https://aeon.co/essays/why-we-need-a-new-kind-of-education-imagination-studies?utm_source=Aeon+Newsletter&utm_campaign=cce5fe2bd6-EMAIL_CAMPAIGN_2022_06_02_12_24&utm_medium=email&utm_term=0_411a82e59d-cce5fe2bd6-70395829
Thanks, CBK. And, also as a response to Bob.
This guy has some great perspectives (although the STEM thing is bullpucky, and irritates me no end. Science is not ‘Technology’, nor is it ‘engineering’, nor ‘math’. Science is inductive, the rest are deductive. There’s a huge difference. (Still waiting for Kuhn)).
And, I was thinking last night about the ‘Chinese’ supernova (remnants are still visible in a telescope as the ‘Crab Nebula’). In 1054, the light from that event reached Earth. The appearance of a bright new star was recorded in many civilizations around the world. One, of course, was China. It was also recorded in North Africa, and in the Inca civilization, and by the Hopi in southwestern North America. All of those cultures were excited about the ‘anomaly’, and were looking for it. Guess where no mention of the event can be found? Europe. I knew this before Kuhn published.
Now, some European descendants claim that it was shown in the Bayeux Tapestry, however the image in that tapestry is clearly that of a comet (with a tail), not a new star. So, why would all of Europe ignore something that attracted the attention of Hopi Indians? (and why don’t ‘liberal arts majors’, supposedly ‘students of history’ know this?)
We need to step out of the straitjacket our eurocentric brains impose.
Speaking of brains, it’s becoming obvious to all that we can only ‘understand’ as far as the physical makeup of our nervous system will allow. What we ‘know’ is what we are allowed to know thanks to our biology. Any ‘scientist’ (particularly an Astronomer) will tell you that. Astronomers study blips of light which cannot be ‘probed’ in a direct experiment, and try to make sense of what they see. Over and over (for thousands of years) they have had to rearrange their image to fit into a new human (limited) perspective. Change, therefore, seem natural. I already understand this (thanks to my education as a ‘scientist’).
Which brings us back to STEM. Why would anyone place science in the same category? Must have been someone clueless about the philosophy and history of science.
Daedalus I find your notes enlightening; but I don’t understand why “who started the idea” is so important to you? (Are you saying: “So what. I KNEW this already”?) But if you understand how the movement of ideas works in history, you will understand that none occur in an historical vacuum; and that such competition of ideas, about “who’s first,” is finally giving way to more collaborative movements and recognitions.
Also, to be critically minded (ahem), neither can I take your reference to the absence of specific information in “Europe” as a given (do you mean to include England here?). I don’t DISbelieve it, but . . . well, can I presume you understand what I’m saying? We don’t have to know everything right this red-hot minute. As a reading of Kuhn’s book will attest to, closed-mindedness and neo-tribalism (scientific dogmatism and group bias) are the scourges of progress in any field.
Also, you say: “Speaking of brains, it’s becoming obvious to all that we can only ‘understand’ as far as the physical makeup of our nervous system will allow. What we ‘know’ is what we are allowed to know thanks to our biology. Any ‘scientist’ (particularly an Astronomer) will tell you that.”
According to not only a long study (30 years) of theoretical philosophy (both in and out of my liberal studies and philosophy of education background, as you seem to suggest I was dead on a shelf all that time), and more recently according to the AEON article, what you say in your note is decidedly reductionist. It’s the other way around. Our physics and nature lay the groundwork for higher/other levels of human living, while those others sublate the groundwork to instantiate our more intelligent and creative existence as humans.
Things, they are a-changing. CBK
We can only hope, CBK. We can only hope.