Interpretive Jiggery-pokery; Part One

91237701A lot of electrons have been disturbed in commenting on the SCOTUS rulings last week. A lot more will be, some of them by me, but underlying the whole sordid mess, is a pernicious view of the law. Justice Kennedy opened his opinion of SSM with this:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

In the analysis section, he says this:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Those two statements are consistent with each other and with the school of thought that can find new rights (or make them up out of the whole cloth) in a two hundred year old document, whose authors meant no such thing, if (and that’s very doubtful) they even thought of such things. That school is what is often called ‘the living constitution’. And it is fully capable of finding rights that don’t exist and were never intended.

Yesterday, No Mans Land published on All along the Watchtower, an excellent history of marriage in Christianity. But that, while interesting, has little to do with the court ruling, because like Roe v. Wade, the court simply decided what it wanted without recourse to the law. I probably should add that while I’ve always thought Marbury v. Madison was right, I’m beginning to doubt my conclusion.

Because the real problem isn’t with any of that, the real problem is the conception of the law. What Kennedy works from is the old Roman conception of the law that flows strongly in European law. It holds that one can do anything that the law permits. It leads to many laws, and a fair percentage of them perverse, and is imposed from the top down, like these SCOTUS opinions.

But American law, like English law, is based on the Common Law, and law that has built up over time, using precedents. We spoke the other day of the start of the written Common Law, in the days of King Æthelberht of Kent. Contemporary with St. Augustine of Canterbury, King Æthelberht’s Law was the first written version of the Common Law, indeed the first written law code in any of the Germanic languages. This was the basis of King Alfred the Great’s Code, and all subsequent English/American law, including Magna Charta.

The key takeaway here is that Anglo-American law is based on a different principle, that one can do anything that the law does not forbid. That difference is fundamental. That is also the basis of the Ten Commandments. That is an entire law code, in ten simple “Thou shalt not’s. More on that in an earlier post of mine, here, and Jessica postulated that Jesus boiled it down even more  here.

And so we see that there is a fundamental flaw in these decrees from SCOTUS, the court simply chooses to violate the fundamental basis of our law to grant non-existant rights.

More to come on this, of course.


The Rule of Law

The crowned portcullis, symbol of the Parliame...

The crowned portcullis, symbol of the Parliament of the United Kingdom. (Photo credit: Wikipedia)

This is a comment from Daniel Hannan‘s Telegraph blog this morning. It is in reference to Parliament doing the right thing and cutting what they are going to give the EU. In truth, they need to withdraw but still, that’s a good start. Good for them.

Anyway, this comment, unusually for a comment in a Brit paper,  has a whole lot of truth in it, for Britain, for Europe, and for us as well.


Today 08:11 AM

“The House of Commons discharged its ancient, elemental role to the letter. MPs are there, in the first instance, to approve or deny the taxes which the executive wants to raise. ”

As is the House of Lords, but denying the House of Lords its proper Constitutional role, is somehow, ‘ok’. Same with what has been done to the Monarchy and its Constitutional role.

Well, it isn’t ‘ok’ and we are going to continue having problems (likely increasing problems), until our Constitutional structure is rebuilt (because that’s what happens with all the alternatives, that really are alternatives to the Rule of Law, problems increase until collapse, which more often than not, becomes violent collapse).

The bottom line, and inescapable obstacle to the Rule of Law, the real elephant in the room in Europe, is the EU.

If those in High Office and positions of responsibility in our Country (and the other Nations across Europe), are incapable of comprehending the inexcusable risks and very real dangers they have presented to the People by their willful association with this lawless State (which is emphatically what the EU now is, and NOBODY, no matter their means or position in Society, is safe in such an environment – as exampled by the treatment of the leaders of Greece and Italy), then they need to get out (whether they jump voluntarily or are pushed), and let adults back in the room.

No Agreement, Treaty, Arrangement, Contract, Property, Right, Liberty, Freedom, or anything else, is worth the paper it is written on, by a lawless State, let alone its ‘word’.

No Nation across Europe has time to sustain the damage that can be done to them between now and the day a referendum can be held. The only answer is to kick the EU out, and kick it out NOW!

Forget ‘negotiating’ a withdrawal, or the sham of a ‘Free Trade‘ arrangement, it will not be worth the waste of breath or the paperwork involved.

Cameron, and the rest (of whatever Party or Public Service), you have duties and responsibilities to the People of Britain, their Constitution, their Bill of Rights, their Common Law, and their Rule of Law.

Start abiding by them.

Or else.

Read the article, it’s quite interesting MPs have remembered what they’re there for – that’s the real significance of the vote to cut the EU budget

Emphasis mine.

That is the bankruptcy of moral relativism laid bare. If the law applies to me but not to thee, it is an unjust law and the just action is oppose it by any, repeat any, means necessary.

The rule of Law, not Men, is a primary foundation of a free society.

Dr. Hawkins is right here. But even if you want to use mere common law the right goes back to Anglo-Saxon England and probably further.

I said this in a post a while ago about it:

Not incidentally, the mark of the freeman is the right the duty to bear arms (sometimes literal and sometimes symbolic) In other words; being a citizen in this society carries with it the duty to defend it. This is the origin of the Militia in the 2d Amendment to the US Constitution. In another peculiar twist, tax bills had to start in the Commons. And remember, these are all codifications of hereditary rights.

John Malcolm

By AWR Hawkins, Ph.D. | May 4, 2012 | The Daily Caller

A recent article in The New Yorker titled “American Battleground,” by Harvard’s Jill Lepore, has been gnawing at me ever since I critiqued it last week for The Daily Caller. As I wrote then, it is a convoluted piece of quasi-academic work that is intended to make gun owners question the founders’ position on private gun ownership and, if possible, open 21st-century American minds to the idea of more gun control.

Lepore does this via subtle and not-so-subtle attacks on the Second Amendment throughout the article. By attacking the Second Amendment, she hopes to somehow convince us that we really don’t have an individual right to keep and bear arms. Rather, we were only intended to have a right to form militias to use guns in that capacity when emergencies arise.

In an attempt to prove her point…

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