Thursday, July 03, 2014

The looter's philosophy

The Hobby Lobby ruling incited predictable rage from the left. The reaction is a window into the mindset of liberals. Liberals either don't understand the proper role of the courts, or they just don't care. Liberals operate with outcome-based jurisprudence. They think the duty of a judge is to arrive at a morally right (as they define it) decision. But there are fundamental problems with outcome-based jurisprudence:

i) Under a representative form of gov't, officials are not autonomous. Rather, the rule of law is based on the consent of the governed. 

How is the consent of the governed expressed or secured? By electing lawmakers who reflect the will of their constituents. In matters of public policy, citizens express and exercise their will through their elected representatives. And there's a reason that's an elective office. To make lawmakers responsive and responsible to the governed. 

It is then the duty of executive branch to enforce said laws, and the duty of the judicial branch to interpret and apply said laws. Under our system of gov't, judges are subservient to the will of the people, as expressed through the laws promulgated by their duly elected representatives. Judges are not the ruling class. Voters the ruling class. 

Judges aren't supposed to take sides. Rather, judges are supposed to rule on what the law means (what is says, as well as legislative intent). 

Outcome-based jurisprudence subverts the democratic process. Subverts representative democracy. When protesters decry the Hobby Lobby ruling because they think it's a "war on women," they should be made to understand that outcome-based jurisprudence denies the consent of the governed. 

ii) At the risk of stating the obvious, outcome-based jurisprudence is a mirror of the party in power. Outcome-based jurisprudence doesn't select for any particular ideology. Embracing that principle doesn't mean liberals get their way. Rather, it pivots on the ideology of the judge. In outcome-based jurisprudence, a good outcome is defined by the ideology of the judge, be it liberal, libertarian, or conservative. 

iii) Liberals show increasing impatience and contempt for the First Amendment. They don't like the results. They think it's a good thing when the Obama administration or the Ninth Circuit flouts the First Amendment. This, again, reflects an outcome-based philosophy.

But when officials take it upon themselves to unilaterally rewrite the social contract, that invites social unrest and, if taken far enough, civil war.  

iv) By the same token, liberals are increasingly impatient and contemptuous of statutory law. If Congress is an impediment to Obama's agenda, then it's okay for him to rewrite statutory law or refuse to enforce statutory law. 

But an obvious problem with that tactic is that if a Democrat president can do it, why not a Republican president? Why are liberals so shortsighted?

v) Apropos (iv), liberals increasingly operate with an end-justifies-the-means philosophy, even though that can obviously backfire. Both liberal and conservative officials can adopt that philosophy. 

I wonder if this doesn't reflect a secular outlook. If you don't believe in the afterlife or the day of judgment, then that makes you impatient. Time is not on your side. You're in a hurry to get what you want. So you gamble on short-term gains. You cheat to get ahead. Nice guys finish last. Take as much as you can get while the getting is good. A looter's philosophy. 

You don't concern yourself blowback further down the line, because that's unpredictable, and in any case, you may not be around by then. As economist John Maynard Keynes said, "In the long run we're all dead!" Not coincidentally, he was a homosexual atheist.


  1. I think liberals would be far less enthusiastic about judicial activism if conservative judges started doing it.

  2. Keynes was Bi-sexual. He was married up until his death to a Russian ballerina.

  3. In the past, many homosexual men married women to keep up appearances, while they led a double life on the side. It gave them social respectability and cover.