The Myth That Justice Is Blind! by Butler Shaffer
(2010-05-23 at 12:14:51 )

The Myth That Justice Is Blind! by Butler Shaffer

With President Obamas nomination of Elena Kagan to fill a Supreme Court
vacancy, the choir has assembled to chant the mantra:-we are not supposed
to know anything of her judicial predispositions.- Questions designed to
elicit indications of how she might rule on given cases are not to be
asked. Lawyers, legal scholars, and judges, along with media lickspittles,
will croon the liturgy.

I have always regarded this proposition as so absurd on its face as to be
unworthy of respect from intelligent, rational men and women. It takes an
Ivy League college graduate to vigorously defend the idea. Think of the
implications of this doctrine were it to be applied to advice you might
seek from others in your daily life. If you were suffering from
appendicitis and sought the help of a medical practitioner, would it be
any of your concern whether that person engaged in established medical
analysis and remedies, astrology, chiropractic techniques, crystal
healing, prayer, or New Age methods?

Whatever you might think of any of these approaches to health, would you
consider it beyond your right to inquire? If your financial advisor
regularly consulted tarot cards, dream analysis, Ouija boards, or Ben
Bernanke to inform his judgments, would you want to know of this fact
prior to his making investment decisions on your behalf?

The general acceptance of this idea requires an underlying belief that
there is something called -the law- with the emphasis on -the- which
wise and well-educated men and women are able to discern through great
effort. It is an idea that can be traced back to Platos notion of
-philosopher kings,- persons capable of discovering the objective
principles and processes beneficial to a well-ordered society. The
premise underlying this belief is that members of the judiciary are
capable of listening to all sides in a dispute and rendering a decision
consistent with these presumed objective legal standards.

Such thinking has also been influenced by scientific methods of reasoning,
i.e., that one can test the validity of a given hypothesis through
empirical means. One can set up experiments to determine the freezing
point of water at sea level and, if the test is properly conducted,
arrive at an answer upon which scientists can agree. (I will omit, for
the time being, the discoveries from the study of chaos that call into
question the -absolute- nature of the results achieved.) The ability of
mathematicians to calculate answers to complex math problems upon which
all can agree is another source of the undeserved faith in the judicial
process.

But -Law- as with philosophy generally - is a normative proposition,
grounded not in some imagined coherence of legal principles with the
physical universe, but in subjectively-created values that differ from
one person to another, one culture to another, and one time period to
another. One can dispute the law of gravity and jump from the roof of a
twenty-story building, but he or she cannot avoid the consequences of
doing so. On the other hand, laws generated by legislative or judicial
bodies can be ignored without adverse effects: have you ever seen someone
driving 100 miles per hour without getting caught?

-Law,- as something created and enforced by the state, is a product of
nothing more than the preferences of those who control the machinery of
the state. There is no more objectively-discovered validity to such a
body of rules than there was in Ayn Rands preference for the music of
Rachmaninoff over Stockhausen. What separates the pro-war from anti-war
advocates are subjectively-held priorities regarding institutional
interests and the value of life. None of this is to say that one persons
opinion is as good as anothers, or that a persuasive case cannot be made
for a given normative standard. It is only that, no matter how strongly
one holds to a given set of values-legal or otherwise-such preferences
can never rise to a higher level than the thinking that produced them.

If some people are to rule others, however, the authority to do so must
be seen to rest upon some higher principle than this. Every grade-schooler
is aware that the bullys power derives solely from his capacity to use
violence upon others. Children are perceptive enough to understand this
basic fact.

Adults, on the other hand, insist upon being seduced into a state of
subservience. Those who govern must be seen as deriving their powers from
some higher source than the exercise of self-serving violence. Monarchs
were once able to bamboozle their victims with the proposition that they
ruled by -Divine right.- The Enlightenment - with its emphasis upon earth
-centered explanations of reality, and individual liberty - forced the
ruling classes to find other rationales for their arbitrary powers. This
was found in the so-called -Social Contract- theory of social practices,
with political systems presumed to have been created by an imagined
collective will of all, subscribing themselves to a written constitution
delineating the authority state officials were to have. That this -Social
Contract- explanation has no more validity to it than -Divine Right-
justifications for the existence of the state, need not concern us at
this point. Other-directed men and women are capable - even desirous - of
being deceived by any rationale for their subservient roles, provided it
be couched in terms familiar to their conditioned mindset.

Thusly do otherwise intelligent men and women cling to the belief that
written constitutions can restrain the arbitrary exercise of state power.
Conservatives still speak of -Returning to the Constitution.- I am sorry
to inform you that the American political system has never deviated from
the Constitution; this document provides the state with all the authority
it might ever wish to exercise. I try making the point by tweaking my
conservative friends with the notion that -The Constitution is what keeps
the government from doing all the terrible things it does!-

If more people bothered to actually read this document - including
President Obama, who once taught constitutional law and who, in this years
state of the union address, erroneously declared that the Constitution
provided that -All Men Are Created Equal- they would discover the
unlimited powers it provided to government. Beginning with a preamble
setting forth the purposes of the Constitution being -To form a more
perfect Union, establish Justice, insure domestic Tranquility, provide
for the common defence, promote the general Welfare, and secure the
Blessings of Liberty,- the document proceeds to set forth how such
purposes are to be attained.

Article I, Sec. 8 informs us that -Congress shall have Power to lay and
collect Taxes, -to pay the Debts and provide for the common Defence and
general Welfare of the United States.- Later on, we discover that
Congress also has the power -To make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.- Standing by themselves, these
words would provide the most ambitious tyrant with the only grant of
authority that would ever be needed to carry out his or her desired
purposes. As Lord Macaulay so well expressed it, -Your Constitution Is
All Sail And No Anchor.-

One of Ms. Kagans college professors has stated that -She is a woman
whose deepest dedication is to the Constitution of the United States.-
There is nothing startling in all of this: one can find in this document
all the power needed for putting together any political program.

Suppose that I was given the authority to -Provide for the general
Welfare- and -To make all Laws which shall be necessary and proper- for
exercising this power? What could I not do, constitutionally, pursuant to
such a grant? Who is to decide what constitutes the -General Welfare,- or
what laws are -Necessary and Proper?- By their very nature all words are
abstractions, and must be interpreted as to their application in the
world. As I ask my students, if a statute regulated the sale of -Glasses,-
would this include drinking glasses? Would it even include -Eye-glasses-
if such glasses were made of plastic, or if contact lenses were at issue?

For those desirous of understanding the realpolitik-instead of just the
rhetoric-of how (and by whom) constitutional powers are to be interpreted,
one can begin with the insights of Humpty Dumpty, who advised Alice that
-When I use a word, it means just what I choose it to mean-neither more
nor less.- -The question is, said Alice, -whether you can make words mean
so many different things.- -The question is,- said Humpty Dumpty, -which
is to be master - that is all.-

Who, in our political scheme of things, is to be -Master- of defining
words, when one -Can make words mean so many different things?- This is a
power usurped, on behalf of the Supreme Court, by Justice Marshall in his
opinion in the classic case of Marbury v. Madison. His convoluted
reasoning came down to his finding, in Article III, a power of judicial
review of the actions of other branches of the government, even though
such authority is nowhere spelled out, or even hinted at, in the
Constitution. When the Framers of the Constitution went to such great
lengths to define - albeit in very abstract terms - the powers of the
other branches, why would such a fundamental authority be omitted from
the section on judicial powers?

The answer, of course, is to be found in the inherently arbitrary power
associated with government in all its forms: those who are to rule must
have a realm of final authority that is not subject to preemption by
anyone else. The American political establishment was concerned - and
with some justification, given the Reign of Terror that had occurred in
France - that such a popular uprising might occur in America, and that
the legislative and administrative powers of the state might be employed
in ways that were inconsistent with institutional interests. Part of our
make-believe democracy consists of the true owners of the state creating
restraints on the efforts of the ruled to direct it to their purposes.
Through the use of a power of -Judicial Review- that is nowhere to be
found in the Constitution, Justice Marshall made the Supreme Court the
-Master- of the meaning of words found therein.

In this manner, the Supreme Court became, for all practical purposes, the
sovereign political authority. Its pronouncements - not those of the
electorate, or of their elected representatives, became the final
interpretation of the meaning of words subject, of course, to a later
court providing a different interpretation. The Supreme Court - whose
members are not subject to being voted in or out of office by the general
citizenry - became the seat of arbitrary power that defines every
government as an agency enjoying a monopoly on the use of violence within
a given territory. Members of the Supreme Court will vote their respective
subjective preferences - or, more accurately, the preferences of the
political establishment that elevated them to their status - for the ever
-changing rules that will govern the rest of us in society.

This is why it is considered so impolitic to inquire of a judicial
nominee his or her thinking on specific issues over which they are to
promulgate binding definitions and rules of law. We may ask such
questions of legislative or presidential/gubernatorial candidates -
although experience shows we are unlikely to get either clear responses
or promises that will be lived up to - but are not supposed to inquire
into the thinking of those who will enjoy the arbitrary powers that
define sovereignty. It is the nature of a sovereign not to be bound down,
for such a limitation implies that his or her ultimate decision-making
authority is subject to the approval or review of other forces who would,
by definition, become sovereign.

What about the legality of federal bailouts of major corporations; or of
congressional powers to audit the Fed; or of presidential powers to
undertake wars without Congress declaration; or the constitutionality of
torture; or the future of Roe v. Wade? These and other court-prescribed
rules or constitutional interpretations are none of your business to ask
of your sovereign rulers in advance of their assuming power. When It
Comes Time For Them To Tell You Of The Rules To Which You Will Be Bound,
Rest Assured That They Will Do So!

May 12, 2010

Butler Shaffer teaches at the Southwestern University School of Law. He
is the author of the newly-released In Restraint of Trade: The Business
Campaign Against Competition, 1918–1938 and of Calculated Chaos:
Institutional Threats to Peace and Human Survival. His latest book is
Boundaries of Order.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or
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