Quotulatiousness

July 4, 2022

A first, tentative step to reining back the juggernaut that is the modern administrative state

Filed under: Bureaucracy, Government, Law, USA — Tags: , , , — Nicholas @ 05:00

Brad Polumbo has words of praise for US Supreme Court Justice Neil Gorsuch:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

“Vesting federal legislative power in Congress [rather than bureaucrats]”, Gorsuch writes, “is vital because the framers believed that a republic — a thing of the people — would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers’.”

But what about those, like dissenting Justice Elena Kagan, who say that federal bureaucrats need wide latitude because Congress is failing to, in their view, adequately address climate change?

“Admittedly, lawmaking under our Constitution can be difficult,” Gorsuch acknowledges. “But that is nothing particular to our time nor any accident.”

“The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty …” he said. “As a result, the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the President must concur or a legislative supermajority must override his veto.”

With an empowered, unelected bureaucracy, “agencies could churn out new laws more or less at whim”, Gorsuch adds. “Intrusions on liberty would not be difficult and rare, but easy and profuse.”

This isn’t hypothetical speculation — it’s exactly what we’ve seen under the status quo.

For a glaring example, just consider the Centers for Disease Control’s pandemic-era “eviction moratorium”. The federal agency unilaterally declared that evictions nationwide were prohibited in many circumstances by citing an old statute that gave the CDC director the ability to order in specific places “such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

They went from that to a nationwide “eviction moratorium”. Stretch, much?

That’s right: Unelected government officials effectively commandeered the nation’s rental market, which caused tremendous dysfunction, trampled over property rights, and sabotaged the supply of rental housing. (For which prices are now surging. Shocker!) And, it was years before the courts finally stopped them and struck down the “moratorium”.

May 8, 2022

“… a majority of ‘pro-lifers’ are women, not men. So [Kamala] Harris is effectively saying: how dare women be allowed a voice in this debate?”

Filed under: Health, Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Andrew Sullivan comments on the leak of a draft US Supreme Court decision that would strike down Roe vs. Wade and the over-the-top reactions on social media from progressives:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

To say that a leaked draft of a Supreme Court ruling prompted an elite meltdown would be a gross understatement. This was a culture war 9/11. “I have typed and deleted a great many comments,” Roxane Gay tweeted. “What do you say when nine people can dictate what happens to your body? It’s ridiculous and hateful.” The Atlantic‘s Adam Serwer, always the subtle one, announced that the court had abolished the entire 20th century. Yep: no more suffrage for women! Jim Crow now!

Taking the arguments of abortion opponents seriously was never an option: “Stripping women of their humanity and rights isn’t a consequence of the ‘pro-life’ agenda, it’s the entire point,” declared Jessica Valenti. Rebecca Traister confessed: “My teeth have been chattering uncontrollably for an hour. Bodies/minds are so weird. Like, not euphemistically — actually chattering. Audibly. And full shaking body. Though otherwise wholly, rationally, well and truly expecting it.”

Going further, freshly-minted critical gender theorist, Jennifer Rubin, argued that any restriction on abortion rights is a violation of secularism: “The right-wing justices and their supporters appear ready to reject one of the Founders’ core principles: that religion shall not be imposed by government edict.” Kurt Andersen went old school and worried about a papist cabal: “It really is kind of remarkable that only one in five Americans call themselves Catholic, but of the Supreme Court majority apparently about to permit abortion to be outlawed, all but one are Catholic and that one was raised Catholic.” Then there’s Vox‘s Ian Millhiser: “Seriously, shout out to whoever the hero was within the Supreme Court who said ‘fuck it! Let’s burn this place down.'” Fuck it! I’ll do it live!

Kamala Harris also found her voice:

    Those Republican leaders who are trying to weaponize the use of the law against women. Well we say, “How dare they?” How dare they tell a woman what she can do and cannot do with her own body? How dare they? How dare they try to stop her from determining her own future? How dare they try to deny women their rights and their freedoms?

The premise here is that all women support abortion rights. But there is no serious gender gap on this question. In fact, a majority of “pro-lifers” are women, not men. So Harris is effectively saying: how dare women be allowed a voice in this debate?

Within minutes of the SCOTUS leak, moreover, we were told it means that before long, interracial marriages will be banned … in a country where 94 percent support them! Imagine Clarence Thomas divorcing himself by jurisprudence. Here’s Traister again: “Voting rights were gutted in 2013. Marriage equality. Griswold. Loving. Don’t ever listen to anyone who tells you such fears are silly or overblown.” Actually, listen to them — if you can hear them over Traister’s permanent rage-tantrum.

What strikes me about all of this is not the emotive hyperbole — that’s par for the course in a country where every discourse is now dialed to eleven. What strikes me most in these takes is the underlying contempt for and suspicion of the democratic process — from many of the same people who insist they want to save it. How dare voters have a say on abortion rights! The issue — which divides the country today as much as it has for decades — is one that apparently cannot ever be put up for a vote. On this question, Democrats really do seem to believe that seven men alone should make that decision — once, in 1973. Women today, including one on SCOTUS? Not so much.

December 2, 2021

If there are no restrictions on voting age, what other expansions of the franchise might amuse the Supreme Court of Canada?

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 05:00

In Wednesday’s NP Platformed newsletter, Colby Cosh suggests that, given the SCC’s demonstrated preference for getting rid of restrictions on voting rights, we may be in for some interesting legal times:

A band of plucky teens, we are told, are suing to have Canada’s voting age lowered. They are not the first to try, and it goes without saying that the youngsters are a front for a gaggle of do-gooder groups who think that it would somehow purify our democracy in the fires of justice if 16-year-olds could vote. NP Platformed thinks this is a terrible idea that has logical problems on its face. If the age-18 voting limitation can’t be defended, how can any such limit be defended?

Rest assured that the grown-up lobbyists who have a sore bum about the voting age won’t be recruiting four-year-old boys to articulate their cause or serve as litigants. It will all be photogenic, politically sophisticated, fantastically unrepresentative teenagers.

But let’s set the snark aside for a moment. You may be asking, as we here at NP Platformed world headquarters did, how a charter challenge to the voting age can happen at all. Surely there’s solid caselaw about this? If you look into the matter, as we did, you might find yourself saying “Uh oh.” As we did.

The most revealing discussion we could find is tucked away in a footnote in a 2019 paper by University of Ottawa Prof. Michael Pal. Within this wad of small print, Prof. Pal outlines the whole issue. The charter says flat out that “Every citizen of Canada” has the right to vote in elections, and various species of legal voting disability have been removed over time, leaving persons under 18 as the only citizens within Canada who cannot exercise this right.

[…]

“The analogy between youth voting restrictions and inmate disenfranchisement breaks down because the type of judgment Parliament is making in the two scenarios is very different. In the first case, Parliament is making a decision based on the experiential situation of all citizens when they are young. It is not saying that the excluded class is unworthy to vote, but regulating a modality of the universal franchise. In the second case, the government is making a decision that some people, whatever their abilities, are not morally worthy to vote — that they do not ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights. But this is not the lawmakers’ decision to make.”

We’re just gonna say it: “regulating a modality of the universal franchise” is drivel. If this is the bedrock on which age restrictions on voting rest, age restrictions on voting are in trouble.

The constitutionality of a voting age was also discussed in the Supreme Court’s 2019 Frank case, which annihilated the voting eligibility restrictions for Canadian citizens living abroad. In that case it was dissenters, specifically justices Suzanne Côté and Russell Brown, who brought the matter up. If legislatures can’t restrict the voting rights of Canadians who have been living in Cucamonga or Timbuktu, how can they impose any limit at all?

The dissenting pair quietly pointed out (at paragraph 144) that the phrase “regulating a modality” is gaseous nonsense, and that the Supreme Court, in its endless lust for making the franchise more inclusive, seems to have made any restrictions at all untenable. (Why, indeed, should the franchise be limited to citizens? Municipalities are already asking this question!)

November 17, 2021

The Supreme Court of Canada — four-ninths woke

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 03:00

In The Line, Leonid Sirota discusses a disturbingly narrow victory for freedom of speech in the Supreme Court of Canada’s decision in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse):

The Supreme Court’s recent decision in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse) has attracted considerable public attention, and for good reason. Although no law was in danger of being found unconstitutional, the case did concern the limits of the freedom of expression, which have always been controversial, and are perhaps more controversial now than they had been in decades. In brief, the issue was whether nasty jokes by an “edgelord comedian”, as The Line‘s excellent editorial described Mr. Ward, at the expense of Jérémy Gabriel, a well-known disabled child artist, amounted to discrimination that could be punished by an award of damages.

Much has already been written about the Supreme Court’s narrow decision in favour of Mr. Ward; for my part, I have already commented on (mostly) the majority opinion on my blog. Here, I focus on the dissent, in which, as The Line put it, “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” that “culled plausible-sounding legalese from Twitter logic”. That sounds about right.

But let me put it slightly differently. The dissent is, in a word, woke. And I do not mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. I think he deserves sympathy on a human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and they were just one vote away from becoming law ― would be utterly corrosive to the freedom of expression.

For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer (with whom two others agree) write:

    We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child.

In what is going to be a theme of my comment, this twists the meaning of words beyond recognition. Conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. I have criticized the majority decision for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted elsewhere, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible with the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence.” This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will be stripped of its “protective cloak” and proscribed as the prize.

September 12, 2021

QotD: The US Supreme Court’s Dred Scott decision of 1857

Filed under: History, Law, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

Scott was a slave who claimed to be free because his owners had taken him to U.S. states where slavery was outlawed; in ruling on the case, Chief Justice Roger Taney, writing for a 7-2 majority, found that Blacks were “beings of an inferior order” who, under the constitution, “had no rights which the white man was bound to respect.”

The Scott decision is now considered an important contributing cause of the U.S. Civil War, which began four years later. It proved, beyond anyone’s doubt, President Abraham Lincoln’s maxim that a sovereign nation could not survive half-slave and half-free. Northern states might be capable of abolishing slavery locally, but this “abolition” would never apply to imported slaves from elsewhere considered as property. One cannot fully understand U.S. history, never mind the progress of its law, without studying and appreciating Taney’s cruel language.

And, indeed, for the world at large, Dred Scott is an unsurpassed reminder of the distinction between law and justice, and of the limitations of a highly reverenced written constitution. Taney not only accepted the (irrefutable) argument that the constitution explicitly countenanced slavery: he wrote fawningly of the Founding Fathers as great men, “high in their sense of honour,” who could never have upheld absolute equality before the law on one hand while hypocritically denying it to Blacks in practice. The Declaration of Independence’s claim that “all men are created equal,” the ex-slaveowner Taney wrote, was never understood by anyone to include inferior races.

Abolitionists of the time saw the innate hypocrisy: the contemporary newspaper editor William Lloyd Garrison risked his life by calling the constitution “a league with hell.” But [University of Buffalo law professor Matthew] Steilen thinks it is better not to expose Black students to the details of that debate. Reading Taney’s “gratuitously insulting and demeaning” words and arguments, he tweeted, is likely to, and there is no other way to put this, injure their feelings. To inquire too deeply into the detail of slavery, and of the law that shielded it, would require Black students to “relive the humiliation” of Dred Scott.

Colby Cosh, “Another Day in a Feelings-First World”, NP Platformed, 2021-06-09.

June 3, 2021

John McWhorter on Affirmative Action

Filed under: Education, History, USA — Tags: , , , , , , — Nicholas @ 03:00

In the latest post at It Bears Mentioning, John McWhorter outlines the history of Affirmative Action in American schooling and explains why it’s no longer doing anything useful and should be re-oriented to actually help disadvantaged students of all races:

John McWhorter’s Twitter thumbnail image

I do not oppose Affirmative Action. I simply think it should be based on disadvantage, not melanin. It made sense – logical as well as moral – to adjust standards in the wake of the implacable oppression of black people until the mid-1960s.

When Affirmative Action began in the 1960s, largely with black people in mind, the overlap between blackness and disadvantage was so large that the racialized intent of the policy made sense. Most black people lived at or below the poverty line. Being black and middle class was, as one used to term it, “fortunate”. Plus, black people suffered open discrimination regardless of socioeconomic status, in ways for more concrete than microaggressions and things only identifiable via Implicit Association Testing and the like. In a sense, black people were all in the same boat.

Luckily, Affirmative Action worked. By the 1980s, it was no longer unusual or “fortunate” to be black and middle class. I would argue that by that time, it was time to reevaluate the idea that anyone black should be admitted to schools with lowered standards. I think Affirmative Action today should be robustly practiced — but on the basis of socioeconomics.

A common objection is that this would help too many poor whites (as if that’s a bad thing?). But actually, brilliant and non-partisan persons have argued that basing preferences on socioeconomics would actually bring numbers of black people into the net that almost anyone would be satisfied with.

I’m no odd duck on my sense that Affirmative Action being about race had passed its sell-by date after about a generation. At this very time, it had become clear, to anyone really looking, that the black people benefitting from Affirmative Action were no longer mostly poor – as well as that simply plopping truly poor black people into college who had gone to awful schools had tended not to work out anyway. It was no accident that in 1978 came the Bakke decision, where Justice Lewis Powell inaugurated the new idea that Affirmative Action would serve to foster “diversity”, the idea being that diversity in the classroom made for better learning.

I highly suspect that most people have always had to make a slight mental adjustment to get comfortable with this idea, as standard as it now is in enlightened discussion. Do students in classes with a certain mixture of races learn better? Really? Not that there might not be benefits to students of different races being together for other reasons. But does diversity make for better learning? Has that been proven?

As you might expect, it has not – and in fact the idea has been disproven, again and again. No one will tell you this when the next round of opining on racial preferences comes about. But this doesn’t mean it isn’t true.

April 21, 2021

QotD: Freedom of speech in Canada

Filed under: Cancon, Law, Liberty, Quotations — Tags: , , , — Nicholas @ 01:00

We have nothing like the First Amendment; our Supreme Court is a Leftist institution par excellence and has even decreed in effect that truth is no defense in cases where “protected groups” are insulted or offended. Paragraph 140 of a 2013 Judgment finds “that not all truthful statements must be free from restriction. Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.” Section 15 (2) of the Constitution Act of 1982 abridges the rights that section 15(1) guarantees Canadian citizens.

Further, our Human Rights Tribunals are Soviet-style shadow courts that discard due process in adjudicating cases of supposed discrimination or “hate speech.” As Canadian Human Rights Commissioner Dean Steacy said: “Freedom of speech is an American concept, so I don’t give it any value.” Openness to everything except freedom of speech, chartered principle and practical reason is the hallmark of our justice system, as it is of the nation. As Carl Sagan quipped in The Demon-Haunted World: “It pays to keep an open mind, but not so open your brains fall out.”

David Solway, “The Canadian Mind: A Culture So Open, Its ‘Brains Fall Out'”, PJ Media, 2018-10-10.

January 30, 2021

Obey your technocratic elites, peasant!

Filed under: Bureaucracy, Education, Government, History, Liberty, Technology, USA — Tags: , , , , , , — Nicholas @ 05:00

Scott Alexander considers some historical (and current) examples of you peasants being steamrolled by the powers of the government at the behest of the technological elites of the day:

I am not defending technocracy.

Nobody ever defends technocracy. It’s like “elitism” or “statism”. There is no Statist Party. Nobody holds rallies demanding more statism. There is no Citizens for Statism Facebook page with thousands of likes and followers.

[…] it worries me that everyone analyzes the exact same three examples of the failures of top-down planning: Soviet collective farms, Brasilia, and Robert Moses. I’d like to propose some other case studies:

1. Mandatory vaccinations: Technocrats used complicated mathematical models to determine that mass vaccination would create a “herd immunity” to disease. Certain that their models were “objectively” correct and so could not possibly be flawed, these elites decided to force vaccines on a hostile population. Despite popular protest (did you know that in 1800s England, anti-smallpox-vaccine rallies attracted tens of thousands of demonstrators?), these technocrats continued to want to “arrogantly remake the world in their image,” and pushed ahead with their plan, ignoring normal citizens’ warnings that their policies might have unintended consequences, like causing autism.

2. School desegregation: Nine unelected experts with Harvard and Yale degrees, using a bunch of Latin terms like a certiori and de facto that ordinary people could not understand let alone criticize, decided to completely upend the traditional education system of thousands of small communities to make it better conform to some rules written in a two-hundred-year-old document. The communities themselves opposed it strongly enough to offer violent resistance, but the technocrats steamrolled over all objections and sent in the National Guard to enforce their orders.

US Highway System needs in 1965 from “Needs of the Highway Systems 1955-1984”, a letter from the Secretary of Commerce to the House Committee on Public Works, approved May 6, 1954.
US Government Printing Office via Wikimedia Commons.

3. The interstate highway system: 1950s army bureaucrats with a Prussia fetish decided America needed its own equivalent of the Reichsautobahn. The federal government came up with a Robert-Moses-like plan to spend $114 billion over several decades to build a rectangular grid of numbered giant roads all up and down the country, literally paving over whatever was there before, all according to pre-agreed federal standards. The public had so little say in the process that they started hundreds of freeway revolts trying to organize to prevent freeways from being built through their cities; the government crushed these when it could, and relocated the freeways to less politically influential areas when it couldn’t.

4. Climate change: In the second half of the 20th century, scientists determined that carbon dioxide emissions were raising global temperatures, with potentially catastrophic consequences. Climatologists created complicated formal models to determine how quickly global temperatures might rise, and economists designed clever from-first-principle mechanisms that could reduce emissions, like cap-and-trade systems and carbon taxes. But these people were members of the elite toying with equations that could not possibly include all the relevant factors, and who were vulnerable to their elite biases. So the United States decided to leave the decision up to democratic mechanisms, which allowed people to contribute “outside-the-system” insights like “Actually global warming is fake and it’s all a Chinese plot”.

5. Coronavirus lockdowns: The government appointed a set of supposedly infallible scientist-priests to determine when people were or weren’t allowed to engage in normal economic activity. The scientist-priests, who knew nothing about the complex set of factors that make one person decide to go to a rock festival and another to a bar, decided that vast swathes of economic activity they didn’t understand must stop. The ordinary people affected tried to engage in the usual mechanisms of democracy, like complaining, holding protests, and plotting to kidnap their governors – but the scientist-priests, certain that their analyses were “objective” and “fact-based”, thought ordinary people couldn’t possibly be smart enough to challenge them, and so refused to budge.

Nobody uses the word “technocrat” except when they’re criticizing something. So “technocracy” accretes this entire language around it – unintended consequences, the perils of supposed “objectivity”, the biases inherent in elite paradigms. And then when you describe something using this language, it’s like “Oh, of course that’s going to fail – everything like that has always failed before!”

But if you accept that “technocracy” describes things other than Soviet farming, Brasilia, and Robert Moses, the trick stops working. You notice a lot of things you could describe using the same vocabulary were good decisions that went well. Then you have to ask yourself: is Seeing Like A State the definitive proof that technocratic schemes never work? Or is it a compendium of rare man-bites-dog style cases, interesting precisely because of how unusual they are?

I want to make it really clear that I’m not saying that technocracy is good and democracy is bad. I’m saying that this is actually a hard problem. It’s not a morality play, where you tell ghost stories about scary High Modernists, point vaguely in the direction of Brasilia, say some platitudes about how no system can ever be truly unbiased, and then your work is done. There are actually a bunch of complicated reasons why formal expertise might be more useful in some situations, and local knowledge might be more useful in others.

November 10, 2020

The amazing mental gymnastics that lead to the US Supreme Court’s unanimous decision in Wickard v. Filburn in 1942

Filed under: Economics, Government, History, Law, USA — Tags: , , , — Nicholas @ 03:00

Antony Davies and James R. Harrigan explain how a farmer growing wheat on his own land to feed his own cattle somehow transmogrified into an interstate commerce activity that could be regulated by the federal government:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

… who ended up being tasked with deciding what Article One, Section Eight actually meant? Herein lies the wrinkle that enables all manner of constitutional mischief in the United States. The institution that ended up deciding what the federal government is empowered to do is itself a branch of the federal government. And it should come as no surprise that when push comes to shove, the Supreme Court routinely finds in favor of empowering the federal government.

This sort of mischief flowered fully in the decade following ratification of the 21st Amendment. In 1942, the Supreme Court decided a case, Wickard v. Filburn, in which farmer Roscoe Filburn ran afoul of a federal law that limited how much wheat he was allowed to grow.

A careful reader might, and should, ask where the federal government’s right to legislate the wheat market is to be found — because the word “wheat” is nowhere to be found in the Constitution. Be that as it may, the federal government’s aim was clear enough. It was to keep the price of wheat high enough for farmers to remain profitable. The Agricultural Adjustment Act of 1938 put an upper limit on how much wheat farmers were allowed to grow, which would serve to keep prices high by limiting supply.

Roscoe Filburn had grown 12 more acres of wheat than the law allowed. But not only did he not sell the excess wheat outside of his home state, but he also didn’t sell it at all. He used the wheat from those 12 acres to feed his cattle. Filburn was very clearly not engaging in commerce, let alone interstate commerce, yet the Supreme Court found (unanimously) that because Congress had the authority to regulate interstate commerce, Congress also had the authority to prohibit Filburn from growing those 12 acres of wheat for his own use. The Supreme Court’s “reasoning”?

Had Filburn not fed his cattle that excess wheat, he would have been forced to purchase wheat on the open market. And even if he purchased wheat that was grown within his home state, doing so would have made less wheat available within his home state for other wheat buyers. Consequently, some wheat buyers within his home state would then have had to buy wheat from outside the state. Therefore, Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce.

The mental gymnastics that went into this ruling made just about any activity interstate commerce by definition. Since Wickard, any time Congress has wanted to exercise power not authorized by the Constitution, lawmakers have simply had to make an argument that links whatever they want to accomplish to interstate commerce. Why? Because they know they can get away with it.

October 15, 2020

This is what happens when politicians delegate too much of their powers to the courts

Filed under: History, Law, Politics, Russia, USA — Tags: , , , , — Nicholas @ 03:00

At the Foundation for Economic Education, Lawrence W. Reed recounts the stunning injustice of Soviet “justice”, in the person of Nikolai Krylenko:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

As I watched the first day of hearings on Judge Barrett’s nomination, I was reminded of a largely forgotten Soviet legal theoretician from decades ago. His name was Nikolai Krylenko. Judge Barrett is being given the Krylenko treatment by Democrat senators like Cory Booker and Kamala Harris, meaning this: The only thing that matters is whether she will vote their party line in future cases.

Under the communist dictatorship of Lenin and then Stalin, Krylenko (1885-1938) rose through the Soviet Union’s legal system to become People’s Commissar for Justice and a Prosecutor General. He was a leading practitioner of the theory of “socialist legality,” which held that an accused person’s innocence or guilt depended on that person’s politics (real or imagined). It sounds nuts and indeed, it was. It was the stuff of Orwell’s nightmare, and one of the reasons the Soviet Union thankfully perished of its own poison.

In The Gulag Archipelago, the famous Soviet dissident and Nobel laureate Aleksandr Solzhenitsyn recounted an episode involving Krylenko. Shortly after Lenin’s Bolsheviks assumed power in 1917, an admiral named Shchastny was sentenced by one of the regime’s judges “to be shot within 24 hours.” When some in the courtroom expressed shock, it was Krylenko who responded thusly: “What are you worrying about? Executions have been abolished. But Shchastny is not being executed; he is being shot.”

To Krylenko, the only morality was what served the Party and the State, which of course in the Soviet Union were one and the same. If your politics were not correct, you would be “corrected,” one way or the other. In Richard Pipes’ authoritative book, The Russian Revolution, Krylenko is quoted as exclaiming, “We must execute not only the guilty. Execution of the innocent will impress the masses even more.”

At the Senate hearings for the Barrett nomination, it was apparent the first day that the Judge was being Krylenkoed. Hostile senators pronounced their verdicts before she had uttered a word, and those verdicts had nothing to do with Barrett’s stellar qualifications or keen legal mind. Legal analyst and George Washington University Law School professor Jonathan Turley commented,

    What they were suggesting is that they will be voting against her because of what they expected her vote would be in a pending case, and that is a conditional confirmation … Here, the senators seem to be saying, “I’m not even going to listen; I’m going to vote against you because I don’t think you’re going to vote the right way …”

Judge Barrett clearly articulated her judicial philosophy, borne out by the way she has ruled at the US Court of Appeals for the Seventh Circuit: She believes the role of a judge or justice is to follow the Constitution and the law as written, not make stuff up in the service of a political agenda. How ironic that this is a point of fiery contention. Senators who swore an oath to uphold the Constitution and the law hate the guts of a judge who does just that!

October 2, 2020

The “Catch-22” in RBG’s majority opinion in City of Sherrill V. Oneida Indian Nation of N.Y.

Filed under: Government, History, Law, USA — Tags: , , , — Nicholas @ 03:00

In The Line, Meaghie Champion outlines the awkward position the Oneida First Nation found itself in after their case made it to the US Supreme Court:

Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., 10 October, 2011.
Photo by Joe Ravi via Wikimedia Commons.

In 2005, in the case of the City of Sherrill V. Oneida Indian Nation of N.Y., the U.S. Supreme Court ruled against the Oneidas, after the nation had attempted to assert sovereignty in traditional land they had to re-purchase after it had been illegally acquired.

Writing the majority position was the late liberal figurehead now being lionized in U.S. media — Ruth Bader Ginsburg.

Granted, she fought for women’s rights and accomplished a lot. She was a law school professor and a judge. She was one of the leaders of the American Civil Liberties Union. She was the second woman to ever serve on the United States Supreme Court. She was influential in a lot of cases on the Supreme Court, including a labour law case that inspired a law to be passed, and an environmental case that set new standards for who could be heard in court on environmental issues. Since her recent death, the news coverage has been singing her praises like hagiography.

But study history and you will find lots of villains, and no saints. Many First Nations people in North America look on Ginsburg’s reification with a much more skeptical eye.

Meanwhile, the sovereignty of many Indigenous nations in B.C. has never been extinguished. Many First Nations here are being corralled into signing treaties that give up lands, rights and sovereignty. They may look to the Oneida as a cautionary tale. When it comes to sovereignty, you must use it or lose it. Don’t look to courts to give it back later. Not even when you have a social justice saint for a judge.

Ginsburg ruled that Indian land in central New York acquired in violation of U.S. federal law, a treaty, and the U.S. Constitution, could not be reintegrated into the ancestral lands of the Oneida Indian Nation — that the Oneidas would be required to pay property taxes to the local government of the City of Sherill. That is, unless the Oneidas sacrificed that land and allowed the federal government to administer it as a trust.

Justice Ginsburg wrote that 200 years had passed since the initial illegal acquisition, the land had passed hands between jurisdictions multiple times over the period, and that the Oneida had just waited too long. (Even though the U.S. Supreme Court acknowledged in 2005 that there was no specific time limit on this kind of case.) She claimed in her opinion that it would just be “unfair” to the non-natives in this case. If the Oneida had sued in court sooner, then it would have been different.

In the long and fraught web of relationships between First Nations and the United States government, it’s hard to pick a time before the late 20th century or early 21st where a First Nations case might be given full and fair hearing by any federal court, which shows Ginsburg’s opinion to be … lacking in historical sensitivity.

October 1, 2020

Supreme Court Shenanigans!

Filed under: Government, Law, Politics, USA — Tags: , , , — Nicholas @ 06:00

CGP Grey
Published 30 Sep 2020

September 21, 2020

Ruth Bader Ginsburg, RIP

Filed under: Law, Politics, USA — Tags: , — Nicholas @ 03:00

David Warren notes the passing of US Supreme Court Justice Ruth Bader Ginsburg at a particularly fraught moment in US political history:

US Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia.
Screencap from a report by CBS News.

The death of the prominent American jurisprude, Ruth Bader Ginsburg, will be this morning’s example. I noticed that a favoured rightwing blog said, “Breaking news. Try to show some respect for the dead.” This comes more easily to a human being, if he is at least superficially decent. Self-discipline may make it possible for others.

Mrs Ginsburg was toward the left side of the Supreme Court in Washington, in her rulings and often articulate dissents, but I loved her anyway. So did the late Antonin Scalia, who when he died inspired real grief to exponents of the other side. They were notorious buddies, Ginsburg and Scalia. They were more than willing to hear each other out; neither was a hothead. Both were deeply informed about Yankee law, and human law generally, unlike most judges. They could discuss its principles at a high level; and at a low, with a sense of humour. Their mutual respect set an example in their vicinity, claquers who included other Court members. They were both utterly worth having at their stations.

One wonders if those days are gone, for the foreseeable future, when some degree of civilization was possible in legal and political debate. When I look instead at electoral campaigns, in which knowing, malicious lies are repeated by both sides, and both are trying to raise the temperature (I won’t say “equally”), I see something larger than the current political issues. We cannot have public order if this continues; only tyranny can be imposed by one side. Mistakes are being made by “my side,” when we forget that daily life requires negotiation. Or rather it doesn’t, if one prefers civil war.

August 26, 2020

QotD: The U.S. Supreme Court

Filed under: Government, Politics, Quotations, USA — Tags: , , — Nicholas @ 01:00

During almost every Supreme Court nomination battle, I try to make the same point: These fights wouldn’t be nearly so ugly if we didn’t invest so much power in the Supreme Court it shouldn’t have in the first place.

Until the Robert Bork nomination in 1987, Supreme Court fights were remarkably staid affairs. But by the late ’80s, the court had become a bulwark for all sorts of policies and laws that should rightly be in the portfolio of the legislative or executive branch, or, better, left to the various states. As a result, on any number of issues — most conspicuously abortion policy — the court became more important than the presidency or Congress. No wonder fights over Supreme Court appointments started to look more and more like political campaigns than debates over the finer points of judicial philosophy.

Jonah Goldberg, “Concentrated Power Inevitably Leads to Political Backlash”, Townhall.com, 2018-05-11.

July 11, 2020

Truncating the state of Oklahoma

Filed under: Government, History, Law, USA — Tags: , , , , — Nicholas @ 03:00

Colby Cosh on what might turn out to be the most important US Supreme Court decision in recent history:

A map of Oklahoma from the mid-1880s showing county boundaries and the tribal areas of Indian Territory.
Encyclopedia Britannica, 9th edition, 1888 via Wikimedia Commons.

On Thursday the court published its judgment in the case of McGirt v. Oklahoma [PDF]. McGirt is Jimcy McGirt, a man convicted in state court in 1997 of heinous sex crimes against a four year old. A creative public defender had tried to argue for years in lower courts that, as McGirt was a member of the Seminole Nation and his crimes had occurred on territory set aside in the 19th century for Creek Indians, he was never subject to state prosecution.

He should have been tried, the argument ran, under the federal Major Crimes Act of 1885, which specifies that accusations of serious felonies against Indians in “Indian country” go immediately to federal court. Under an 1856 treaty between the U.S. and the Creeks, the Creek lands were to be a “permanent home” for the displaced nation for as long as it existed (at a time when Aboriginal-Americans were still widely expected to diminish and disappear as a race).

The formalized concept of an Indian reservation did not yet exist, but the theory, then and now, is that some Aboriginal nations have direct relationships, albeit ones of “dependence,” with the federal government. Sometimes it is said that the U.S. is the “suzerain,” the overlord, of otherwise sovereign Indian nations. The Creeks, and the other four “Civilized Tribes” who had been forced into the “Indian Territory” that once covered the eastern part of future Oklahoma, were given strong written promises that they would be held apart from the U.S. states proper and would have jurisdiction over crimes and civil matters on their lands. Only the United States Congress, as a power contracting with sovereign nations, could act to encroach upon this jurisdiction.

In a fashion familiar to anyone who has read even a shred of the history of the American Indian, these promises just kind of got … misplaced. In the early 20th century the Oklahoma tribes were encouraged by Congress to abandon communal property holding and take up individual “allotments” of Indian-held land. This ought not to have changed the underlying nation-to-nation relationship, any more than assigning homesteading parcels to settlers busted up or negated the ultimate sovereignty of the U.S. elsewhere in the American West. But that constitutional framework was more easily ignored once a contiguous bundle of territory began to be bought and sold. (Some of it became part of the city of Tulsa.) This history has helped to make similar allotment action in Canada impossible, whatever advantages it might have.

« Newer Posts — Older Posts »

Powered by WordPress