Average kids

Some parents push their kids very hard to excel. In addition to individual examples, there are some patterns. There's the stereotypical case of immigrant kids, especially Asian immigrants. I don't know how widespread that actually is, but I believe it has some basis in fact. This gives rise to the "model minority" image. 

I think rich parents, or at least some rich parents, push their kids to excel in order to maintain their social status. Dad went to Exeter, so you must too. Dad went to Harvard, so you must too. Dad's a Wall Street banker, so that's your destiny too. 

Now, up to a point, kids can benefit from parents who set reasonably high expectations. However, we need to make allowance for the fact that (gasp!) most kids are average. 

"Average" isn't a complimentary adjective in American parlance. But in many contexts, there's nothing wrong with average.

If I go to a hamburger franchise, I expect an average hamburger for an average price. If I take my girlfriend to a fancy restaurant, based on a glowing review, and pay extra for what turns out to be average cuisine, then average is substandard. I wanted to impress her. Make it a memorable evening. But average food for average prices is the way it's supposed to be.

Most kids are average because that's the definition of "most." At least one definition. In that respect, "average" is a synonym for "normal." 

Now an average student can sometimes be competitive with a gifted student if the average student is diligent while the gifted student is a slacker. 

Some gifted students never develop their potential precisely because everything comes to them so easily. They coast through school. What is effortful for the average student is effortless for the gifted student. Same output, different input. 

Up to a point, a Toyota can go as fast or faster than a Ferrari. But that depends entirely on the indulgence of the Ferrari driver. He lets the Toyota pass him. But it only takes the slightest pressure on the gas pedal for him to leave the Toyota in the dust.

The problem is when ambitious parents expect their average child to be completive with a gifted child who's exerting himself. That puts unreasonable pressure on an average child. A gifted student has more in reserve, and if he chooses to tap into it, he can outperform an average student, regardless how of hard the average student applies himself. 

When it comes to competing for admission to Ivy League schools, it's detrimental to kids if parents fail to make allowance for their innate abilities. No amount of hard work will offset natural aptitude if you're up against someone with far more aptitude who floors the gas pedal. 

A child should not be made to feel that he's a failure if he can't compete at that level. He can put the pedal to the metal, but if his engine is a Toyota, that won't beat a Ferrari. An overachiever can outperform an underachiever so long as the underachiever has no ambition. But a gifted student has an unsurmountable advantage if he chooses to exploit his superior aptitude. There should be no shame in losing that contest. 

Common law and Constitutional law

http://www.firstthings.com/blogs/firstthoughts/2012/12/common-law-and-constitutional-law-a-response

HT: Louis

Overstepping one's authority

I'm going to assess an argument one might run across among some conservatives. I'm not attributing this to any particular individual. The argument goes like this: 

i) On the one hand, the Federal judiciary exceeded its authority when it ruled a certain way (pick your case).

ii) On the other hand, that ruling is the law of the land. We must abide by it while we work to reverse it by getting more conservative justices on the bench. 

My point is not to exactly represent any individual's argument, but to clarify the argument. To sort out and spell out the kind of argument one sometimes runs across, by separating the two elements of the argument, and comparing them side-by-side.

And if you do that, these two strands of the argument stand in conflict. If any official or gov't agency exceeds its authority, we don't normally say, "But that's the law!"

After all, to exceed their authority is to overstep their legal authority. Isn't that the very definition of an unlawful, lawless, or extralegal directive? They lack a legal basis for their assertion. 

For instance, I believe you normally need a warrant to wiretap the communications of an American citizen on US soil. Suppose your supervisor in the FBI, CIA (or whatever) orders you to conduct an illegal wiretap.

He's exceeded his authority. Since he doesn't have the authority to give that order, it is not a lawful order. 

Same thing with police who sometimes issue lawless orders to private citizens. Now, as a practical matter, you may not be in a position to safely disregard the command. You might comply at the time, then challenge it in court–if the alternative is getting shot.

But I'm making a point of principle. In a situation like that, you have no legal obligation to comply. But isn't that analogous to people who say certain judicial rulings  exceed the authority of the judicial branch?

If that's the case, then how can that be the "law of the land"? How can there be a legal obligation to submit to a ruling if the judiciary overstepped its Constitutional authority? How is that different in principle from the examples I gave?

I'm just responding to conservatives who might say that a particular ruling represents an abuse of power, transgressing the Constitutional prerogatives of the court, yet that's binding on private citizens as well as the other two branches of gov't, unless and until it is overturned by the court. 

These two arguments don't go together. You can relieve the tension by dropping one or the other. But in combination, they are incoherent. 

Did the Early Church Teach ‘Faith Alone’?

Alister McGrath’s work on justification, Iustitia Dei, provides an exceptional historical overview. He provides a discussion of doctrine from approximately the time of Augustine (and don’t forget “Augustine’s Goof”, which led in the first place to his understanding of justification as “a process”).

McGrath said that the doctrine, in the first 350 years of church history, was “inchohate and ill-defined”. Now in this new work by Thomas Schreiner, Faith Alone: The Doctrine of Justification, provides, among other things, an expansion and clarification of what McGrath had said about this period. Here are several conclusions of that particular segment of his work from a review by Jeremy Bouma:

“In the writings of the earliest Christians we do not find many references to justification,” Schreiner notes, “but the evidence we do have supports the notion that most early church fathers understood justification forensically.” (26)

For instance, he notes Clement emphasized God’s gracious work in the lives of believers; justification is granted by God to those who exercise faith; and good works result from faith, they’re not the grounds for it.

Likewise, “Ignatius emphasizes that believers live according to grace and center on Jesus Christ…Justification for Ignatius centers on Jesus Christ, and the atonement that comes through his blood, so that Christ is understood as a substitute.” (28)

Schreiner quotes the Epistle to Diognetus as an example of an early text where “justification by grace and by the substitutionary work of Christ are clearly taught”:

Where the race stands

A few musings on the current state of the race:

It isn't clear to me if Hillary will be the nominee. I think it's hers to lose. She's an exceptionally vulnerable candidate, and I'm sure Democrat operatives would prefer someone without her liabilities take her place. 

Hillary shares her husband's ambition and morality, but without his skill set. She's a classic battle-ax. She lacks his ability to schmooze a crowd. And unlike him, with the sexy bad boy image, she can't turn vice into a political virtue.   

She's a plodder while he's a quick study. He's an impersonator who can instantly shift from law prof. to funky saxophonist to Southern preacher boy. 

But it's my impression that many women Democrats are committed to Hillary. And that's the largest voting block in the Democrat party. 

They think it's her turn. They think it's their turn. Indeed, they think it was her turn before Obama cut in line. This is her last chance.

They think the time is past due for a woman president. They won't settle for another male candidate:

https://reason.com/archives/2015/05/03/meet-the-vagina-voters

Assuming that's the case, I think Elizabeth Warren would be the only acceptable substitute. But there are problems with that:

i) Hillary won't go quietly into the night. For decades, she's been casting covetous eyes on the White House. She lives for power. And at her age, it's now or never. The party bosses can't buy her off with a golden parachute this time around. So she's the kind of person who will dynamite the house if she can't have it.

ii) The fact that Warren can win in the hothouse enclosure of Massachusetts hardly makes her a candidate with nation-wide appeal. 

Then there's the Republican field. Trump has been riding the big wave. That's exhilarating, but as surfers know, it's perilous. Timing is everything. The trick is to ride it for long as you can, but exit at the last moment just before tons of water come crashing down on the surfer. The fact that Trump lost so much ground in the last debate shows how soft his support is. 

I assume Rubio benefits the most from Walker's exit. 

Jeb has the money to hang on. 

Many conservatives like Cruz. That's understandable. A few reservations:

i) He's more cynical and calculating than his cultivated image. 

ii) He's aloof. Too cerebral to have popular appeal. And from what I can tell, he lacks the people skills to get things done. Doesn't play well with others. It's not enough to have great ideas if you can't build a coalition that turns them into law and policy.

Carson is the anti-Trump. Decent, honorable, modest. But at this point he's another protest candidate. Carson would benefit from Christie's temperament, while Christie would benefit from Carson's values. 

Christie is smart, articulate and aggressive. But he's a social liberal. That combined with his support for the surveillance state, and I can't vote for him–even in the general election. 

Santorum has everything going for him except voters. He's smart, articulate, experienced, informed, telegenic, conservative. His fatal handicap is that he's too good for the electorate. I don't mean he thinks he's too good–I mean he really is. 

Jindal would be excellent in many respects, but in this election cycle he's a sailboat without a breeze. Dead in the water, he paddles furiously, but moves in a tight circle. However, he has many opportunities to run again. Same thing with Walker. 

It's hard to predict how far Fiorina can go. 

I like Rand on domestic surveillance and domestic drones. I'd like to see other candidates incorporate that into their policy initiatives. But he's predictably hopeless on Iran. 

In addition, he suffers from the fact that he's sitting on his father's shoulders. He wouldn't have gotten that far on his own. He lacks the raw ability–and it shows. 

Huckabee is my favorite candidate on social issues. And he's good on judicial imperialism. But I don't see him winning the general election, even if he got nominated.

Moreover, he's not as saintly as the image he projects. He has a greedy streak. Consider his McMansion beach house. He has an egocentric streak. Drawn to jobs that make him the center of attention. And he's a social climber who used the pastorate as rung in the ladder. At least it sure looks that way. 

I think Kasich is even worse than Jeb. In the pecking order, I put Trump at the bottom, Christie is one notch above. I can't vote for either. Kasich might be one notch above Christie. Hard to say. And I don't know that I could bring myself to vote for him in the general. Jeb is the worst candidate I could still vote for, if it came to that. 

Jim Webb might be objectively better than Trump. But I won't vote Democrat under any circumstances. Even if they happen to run a candidate who's better than his Republican counterpart, when you elect a president, you empower the party he represents. It's a package deal. 

Does being an atheist interfere with being moral?

http://whatswrongwiththeworld.net/2015/09/does_being_an_atheist_interfer.html

Back to the founders

I'm going to respond to a round of comments by TFan:

"And see my point two about the need to concede the point of my original article if you want to debate judicial supremacy."

You mean your unqualified claim that judicial precedent is law? Why should I have to concede that to deny judicial supremacy? You seem to equate denial of judicial supremacy with civil disobedience, according to which judicial precedent is ipso facto law, so that rejecting judicial supremacy's equivalent to breaking the law. But since that equation is the very issue in dispute, I hardly need to concede your premise to deny your conclusion. Rather, I deny your premise.

"That's simply not true. Even if judicial precedent can be overruled other ways, it's still law. You need to start thinking more clearly about this."

You constantly resort to a simplistic formulation of the issue. It is "the law" for whom or what? The litigants? Lower courts? The law of the land? A law that's binding on the executive and legislative branches? Not according to departmentalism. 

You said "it takes a Constitutional amendment in the US" to "overrule the courts." That presumes judicial supremacy. But according to departmentalism, judicial precedent is not ipso facto binding on the other two branches of gov't. 

"The English system wasn't a purely common law arrangement, so your argument fails."

I didn't claim that the English system was a purely common law arrangement. In fact I've discussed how it combines elements of common law and fundamental law. 

I'm simply answering you on your own terms. In principle, a written constitution restricts judicial freedom. Judges have less discretion under that system than a common law system (or system combining common law with natural law). 

"I don't need to prove judicial supremacy to prove that judicial precedent is law. You seem to have trouble distinguishing those points."

Which misses the point. "Is law" for whom? That's the problem with your unqualified formulation. If, say, the executive refuses to enforce a particular judicial ruling, then the general public needn't abide by that ruling. It can't be "the law of the land" if it is not in force. If the executive or legislative branch hasn't obliged them to comply, it lacks the force of law. 

"Practically anyone who knows anything about the American legal system recognizes that for the last two centuries, judicial supremacy has been the status quo. That two centuries is old enough to encompass the founding fathers, like Madison of Marbury vs. Madison."

i) I believe that's the second time in our exchange that you've appealed to Marbury as if that's a deal breaker for my position. From what I can tell, you haven't bothered to read (or absorb) the supporting material I've adduced regarding departmentalism, for if you had, you'd realize that departmentalism, is consistent with judicial review, but opposes judicial supremacy.

It's self-refuting for you to accuse me of ignorance regarding the alleged implications of Marbury when, before you left that comment, I already did a post engaging that very claim:

http://triablogue.blogspot.com/2015/09/departmentalism.html

Likewise, I engaged the same claim 3 days before in this post:

http://triablogue.blogspot.com/2015/09/judicial-authority.html

Where I quote Constitutional scholar Michael S. Paulsen. 

Likewise, on the first week of the month, I linked to no fewer than four discussions of that very issue:

http://triablogue.blogspot.com/2015/09/not-law-of-land.html

If anything, you're the one who seems to be uninformed. I've presented fairly copious counterevidence to your position on judicial supremacy, which includes direct engagement with Marbury, and you haven't produced any evidence to the contrary. All you do is to name-drop Marbury v. Madison and take your interpretation for granted. That's your prerogative, but it's not a refutation. Not even rational persuasion. 

The constitutional scholars I've cited explain how Marbury is consistent with departmentalism. How that's not a recipe for judicial supremacy. You might disagree with their interpretation, but thus far you don't even show any familiarity with the other side of the argument. 

ii) In addition, if you were attentive to the historical evidence I've cited, you'd be aware of the fact that departmentalism goes right back to the founding fathers. From what I've read, both Jefferson and Madison were departmentalists. 

According to departmentalism, each branch of gov't has the duty and authority to interpret the Constitution. Likewise, one branch's interpretation is not ipso facto binding on another branch. 

From the legal scholars I've read, you have Marbury backwards. It's not asserting the authority of judicial Constitutional interpretations to compel the executive and legislative branches, but denying the authority of executive and legislative Constitutional interpretations to compel the judiciary. 

The founding fathers were concerned with autocratic gov't. Concerned with any one branch becoming autocratic. Concerned with mobocracy. They devised a system to split the difference, so that no one power center would have enough power to deprive the other power centers of their power. 

In addition to the role of the elective branches, there's direct democracy. Departmentalism is one traditional theory opposed to judicial supremacy. But as I noted in a response to you, Constitutional scholar Larry Kramer has made a historical case for Constitutional populism. According to him, that's another traditional theory opposed to judicial supremacy. 

"Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy…So, let's briefly consider the question of so-called Judicial Supremacy."

I don't know why you act as if that's my idiosyncratic terminology. In Cooper v. Aaron (1958), the Supreme Court used that terminology to characterize its own claims. This, again, makes me wonder how conversant you are with the details of the debate. 

"In practice, i.e. the way things are, the Supreme Court's interpretation wins. That's the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said "John Marshall has made his decision; now let him enforce it!"

It wasn't just Jackson alone, acting unilaterally. Rather, Jackson and Congress were united in their opposition to the Court: two branches against one. Then there's the celebrated case of Lincoln treating the Dred Scott ruling as a dead letter. 

(BTW, I don't countenance the Indian Removal act. But I'm not discussing the issue on the merits. I'm just discussing procedural issues.)

"It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don't think it was justified, even if they don't think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn't say laws were unconstitutional, but simply refused to treat as valid laws it didn't think were justified? That would seemingly potentially cause chaos."

i) Yet that's precisely what the Court did in Marbury, even though TFan hangs his argument on that peg. 

ii) In addition, TFan raises a pragmatic objection to departmentalism, but he ducks the question of whether it was the intent of the founding fathers to make the judiciary the final arbiter of what the Constitution means. 

BTW, I'm not suggesting the founders had a monolithic view of the judiciary. But from what I've read, there was certainly no monolithic support for judicial supremacy. 

iii) As I discussed in another post, when the executive and/or legislative branches disregard judicial opinion, that has a potentially destabilizing effect. But the system only works so long as men of good will, in all three branches, play by the same rules. No system is self-correcting. Any accountability system can be corrupted. A system of checks and balances only works provided taht all the parties abide by the same rulebook. 

If one branch egregiously abuses it's authority, then that becomes a game of chicken: who blinks first? Within the system, you may end up with a stalemate. In that event, the citizenry is the final fallback. You have to go outside the system. 

"Steve's argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative."

I'm responding to TFan on his own grounds. If he says the judiciary is the absolute arbiter of what the Constitution means, then that grants the judiciary an incontrovertible prerogative to "interpret" out of existence any challenge to its hegemony. It can reinterpret an impeachment clause or reinterpret a new amendment to remove any check on its unbridled authority. TFan's position is self-contradictory. 

Finally, jurisprudence isn't static. A lot depends on what law students are taught. That can change from one generation to the next. If they are indoctrinated in judicial supremacy, many will unthinking accept that framework. But if that's challenged on historical grounds, opinion can shift back to an earlier (e.g. pre-Cooper v. Aaron) understanding.

Miracles and the ad hoc fallacy

http://mschultz83.com/2015/09/21/miracles-and-the-ad-hoc-fallacy/

Changing horses

One difficulty I have with TFan's statements on Obergefell is that he's ending up in a different place than where he started. This is where he initially staked his ground:

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

That's an appeal to the past. To the relevance of historical interpretation. To the pertinence of what the founders intended.

But in his latest statement he says:

Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that's not where the American system is today. 

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That's how the system is, whether or not that's how the system should be. I leave the should be question to the academics and the rich.

That appeal nullifies past understanding. What the founders had in mind is beside the point. That's just "academic." All that's germane is how things stand as of now.

From what I can discern, TFan switched arguments in midstream. Indeed, reversed his argument. His initial argument was based on the origins of the Republic in a common law tradition which English colonists inherited from the Mother country.

But according to his latest argument, that appeal is mooted by the current status quo. All that matters is how the system works at present, and not whether that's at odds with the intentions of the founders, as well as the states that ratified the Constitution.

White House spy

Predictable, Ben Carson is getting pounded (even at NRO) for an answer he gave to Meet the Press. Here's the whole exchange:

CHUCK TODD:

Let me wrap this up by finally dealing with what's been going on, Donald Trump, and a deal with a questioner that claimed that the president was Muslim. Let me ask you the question this way: Should a President's faith matter? Should your faith matter to voters?

DR. BEN CARSON:

Well, I guess it depends on what that faith is. If it's inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the constitution, no problem.

CHUCK TODD:

So do you believe that Islam is consistent with the constitution?

DR. BEN CARSON:

No, I don't, I do not.

CHUCK TODD:

So you--

DR. BEN CARSON:

I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.

CHUCK TODD:

And would you ever consider voting for a Muslim for Congress?

DR. BEN CARSON:

Congress is a different story, but it depends on who that Muslim is and what their policies are, just as it depends on what anybody else says, you know. And, you know, if there's somebody who's of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I'm with them.

http://www.nbcnews.com/meet-the-press/meet-press-transcript-september-20-2015-n430581

i) He was speaking off-the-cuff. And he's not an expert on Islam.

That said, his answer was perfectly reasonable. He gave a nicely qualified answer. 

As a matter of fact, Islamic theology/ideology is antithetical the US Constitution. Islam demands a coercive state religion. Religious dissent is either intolerable or punished by fines. Non-Muslims don't have the same civil/legal rights as Muslims.

A nominal, secularized Muslim might reject all that, but then, he isn't really a functional Muslim.

ii) I'd add, going beyond what Carson said, that Islam is the religion of our mortal enemy. And that's not an incidental relationship. Islam is what is motivating our mortal enemy. That's what fuels jihad. 

To have a pious Muslim president would be making our enemy the commander-in-chief. It would give him access to all our classified intelligence and classified military technology. In effect, it would be putting a foreign spy in charge of the CIA, Pentagon, &c.  It's like asking if, during the Cold War, a Leninist should be the US president. That would instantly subjugate us to the enemy.  

"When complementarianism gets silly"

This article was plugged by the Aquila Report:

http://thinktheology.co.uk/blog/article/when_complementarianism_gets_silly

A few comments:

This article is in response to Piper's answer to a question regarding policemen. As I've indicted in a post, I wouldn't frame the issue the way Piper does. 

When does complementarianism get silly? That's the question raised by an interesting (and at times quite heated) debate in August over women in the workplace. I'm commenting on it, not because it was heated, or because by doing so I'm hoping somehow to ingratiate myself with the arbiters of acceptable thought - I would have thought the ship had pretty much sailed on that one - but because I live under a woman head of state, grew up under a woman Prime Minister, recently voted for a woman Member of Parliament (who also happens to be a member of my church), and have hundreds of women in my church whose jobs and everyday lives often involve them telling men what to do.

The obvious danger here is to baptize the status quo. At a de facto level, there are many women in positions of authority over men. But that doesn't address the de jure question of what that ought to be the case. 

The New Testament instructions on how maleness and femaleness should be applied seem, at least to me, to focus almost entirely on relationships in the gathered church and in the household. This could be taken as an argument from silence, but it is a fairly important silence: we have women in the New Testament who run their own businesses (Lydia), act as benefactors to men (Phoebe), precede their husbands when named together (Prisca), have households, presumably including male slaves (Lydia, Chloe?) and act as a “mother” to single men (Rufus’s mother), not to mention the women in the Old Testament who lead Israel into battle (Deborah), kill enemies (Jael), advise kings (Huldah) and save nations (Esther), and there is no indication that any of them shouldn’t have done these things because they were women. When transposed into a modern key, therefore, I cannot see warrant in Scripture for saying that women should not manage men at work, tell men what to do, govern the country, or (in John’s language) influence men in personal and directive ways.

i) I agree with him that we have Biblically sanctioned cases in which women sometimes take the lead. To take one example, if a woman is a businesswomen, then she clearly has the right to tell her employees what to do. If it's her business, then she's the boss. Mind you, that's not coercive so long as employment is voluntary. 

ii) To restrict the relevance of gender to relationships in the church or the family is fallacious. Those represent special cases of a general principle. After all, if there was no underlying principle, why would those instructions even be applicable to church and family? What's the common, overarching principle? It must be grounded in something broader than two particular instances–otherwise, there's nothing to justify its force even in those two instances. That would be ad hoc. 

In the UK, it is far from a hypothetical scenario: our Queen, our only female Prime Minister and my current female MP have all been conservative and Christian, and presumably it will only be a matter of time before a pro-life, Republican woman has a shot at the Oval Office, even if it isn’t Carly Fiorina. What then, I wonder?

Sure, if it's a choice between a liberal male candidate and a conservative female candidate, we should vote for the woman. 

When prophecies don’t happen

http://www.craigkeener.com/when-prophecies-dont-happen/

"Bad law is law"

I'll briefly comment on this:

http://turretinfan.blogspot.com/2015/09/bad-law-is-still-law.html

Unfortunately, TFan's analysis is persistently reductionistic. He never gets beyond the threadbare claim that a judicial ruling can have the force of law. That's a very simplistic view of the issue. 

He fails to distinguish between judicial review and judicial supremacy. He invokes Marbury v. Madison, as if I haven't taken that into account.

He neglects to engage the historical arguments presented by legal scholars I've cited, viz. Robert George, Ed Whelan, Michael Paulsen, Paul Moreno, Robert Lowry Clinton (and, most recently, Larry Kramer).

He's stuck on one controlling idea, which fails to do justice to a historically informed understanding of what our system of gov't amounts to.  

This is not a question of what it "should" be in some utopian sense, but what it was designed to be according to the Founding Fathers. I've been arguing for the latter, not the former. 

Finally, his latest response is already dated, because he ignores my reply to a comment he left on my blog. As I demonstrated, his position becomes a reductio ad absurdum. His post is at least one step behind the actual state of the argument at this juncture. 

Common law and Constitutional law

I'd like to comment on a key aspect of TFan's contension that Supreme Court rulings ipso facto constitute "the law of the land."

It's true that American jurisprudence was influenced by the English common law system. After all, we started out as a bunch of English colonies. To some extent, Colonial America was governed by common law, although you had some theocratic communities which appeal to Biblical law. 

But while there's a degree of continuity with the English system, there's also a significant degree of discontinuity. Unlike England, which had no written Constitution (although they do have Magna Carta, as well as the 1689 Declaration of Rights), the founders of the Republic broke with English jurisprudential tradition by having a written Constitution, which is the supreme law of the land. We need to distinguish between Colonial American jurisprudence and Republican American jurisprudence. A written Constitution subordinates all three branches of gov't to a Constitutional rule of law. In the absence of a written Constitution, precedent is more authoritative. 

This is reinforced by the fact that the American Republic was founded on the consent of the governed. And even in Colonial America, deference to common law was far from absolute, as Larry Kramer has documented, in his historical investigations of "popular constitutionalism." And that's because there was a dialectical relationship between common law and fundamental law (or natural law). 

Departmentalism

by ED WHELAN

We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning. 

This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision. 

Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody. 

The Court did not propound the myth of judicial supremacy until 1958. But when it did so (in Cooper v. Aaron), it tried to concoct a venerable history. It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had “ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” 

The myth of judicial supremacy pervades our legal culture, even if it is often invoked only selectively to protect and leverage favored rulings. Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it. In our modern regime of government by judiciary, the non-lawyer may readily be pardoned for doing the same. 

Read more at: http://www.nationalreview.com/article/418630/new-book-takes-myth-judicial-supremacy-ed-whelan

But Barnett’s article pervasively conflates the power of judicial review with what he calls the power of “judicial nullification.” As I’ve made clear, the power of judicial review enables courts to decline to apply laws they deem to be unconstitutional. As Chief Justice Marshall stated in Marbury (emphasis added): 

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.  So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. 

Nothing in this narrow concept of judicial review means that a court, in declining to apply a law on the view that the law is unconstitutional, thereby wipes the law out of existence. The Founding Era evidence that Barnett offers is entirely compatible with the narrow concept of judicial review. So, yes, federal judges, in the course of deciding cases, “will declare [a law] to be void” (or, as Marshall puts it in Marbury, “entirely void”), “could declare an unconstitutional law void,” will “consider [unconstitutional laws] as null & void,” and so on. But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.

Read more at: http://www.nationalreview.com/bench-memos/419277/against-euphemistic-defenses-judicial-supremacy-ed-whelan

Judicial absolutism

Turretinfan:

The question addressed by my post was whether Obergefell is law, not whether it is good. It is bad.

My post didn't frame the issue in terms of whether or not Oberfefell was good or bad. 

On its face, the decision is an interpretation of the Constitution. It purports to apply the Constitution to the case of so-called same-sex marriage.

Which is just a ruse. Kennedy appeals to the 14th amendment equal protection clause to divine a Constitutional right to homosexual marriage. That, however, is a legal travesty. As one source points out:

The Thirteenth Amendment abolished slavery throughout the United States. See U.S. Const. amend. XIII. In response to the Thirteenth Amendment, various states enacted "black codes" that were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment countered these "black codes" by stating that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws." See U.S. Const. amend. XIV. 

https://www.law.cornell.edu/wex/civil_rights

i) So that concerns racial equality, not homosexual equality. The 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, had no intention of making homosexual marriage a Constitutional right. 

Obergefell is not an interpretation of the Constitution. Rather, it reassigns the 14th amendment to a referent (homosexual marriage) which the legislators and ratifying states never contemplated. The 14 amendment cannot mean that or refer to that. 

ii) Furthermore, it's not just that they couldn't foresee that issue. Rather, the 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, would undoubtedly be opposed to homosexual marriage, had that been proposed for their consideration. Consider the prevalence of anti-sodomy laws back then. Indeed, until they were struck in 2003. 

So that's not a logical extension of a general principle. That "interpretation" of the 14 amendment isn't evolutionary, but revolutionary.

Obergefell is an exercise in judicial make-believe. Pretending there's Constitutional authorization for homosexual marriage. 

The constitution unequivocally gives the judiciary the authority to apply the Constitution to cases: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" (Article 3, Section 2).

You keep ducking the issue of judicial supremacy. The question at issue was never whether the judiciary has the authority to interpret the Constitution, but whether the judiciary has ultimate authority to interpret the Constitution. Does the Constitution say that? No. Did the Founding Fathers grant the judiciary the final say on what the Constitution means? Not from what I've read. 

Moreover, your appeal piggybacks on the false premise that Obergefell is an interpretation of the Constitution, when, in fact, that's a transparent ploy. 

Even assuming that the minority opinion of the Court was an objectively better interpretation…

This isn't merely a question of better or worse interpretations. Rather, the majority didn't even attempt to offer a good faith interpretation of the Constitution. That's a game of pretend. What they did is begin with their social agenda, then foist a patently anachronistic import onto the 14 amendment. Their judicial opinion lacks any legitimacy in this case.

So it becomes an issue, not of Constitutional authority, but judicial authority. Not what the Constitution warrants, but what the Court warrants–in spite of the Constition. Does the judiciary have unlimited authority? 

On its face, Obergefell is a judicial interpretation of the Constitution.

i) It's not the duty of executive or legislative magistrates to be party to a judicial charade. They should not be coconspirators in that duplicitous exercise. 

ii) How is your position regarding the judicial "interpretations" of law any different than the Catholic position regarding magisterial "interpretations" of Scripture? Stipulating that the Constitution means something doesn't make it so, anymore than stipulating that the Bible means something doesn't make it so.

iii) Finally, your argument is self-defeating. In your post you say:

Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.

But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority. 

They can "interpret" the Constitution to mean the US president is the English monarch, Congress is Parliament, and Anglicanism is the state religion. 

They can interpret the Constitution to mean judges have the authority to appoint their own successors. They can interpret the Constitution to mean the Chief Justice is Command-in-Chief (rather than the president).

ii) Isn't the very purpose underlying the Bill of Rights to curtail the scope of gov't? What's the point of having a written Constitution in the first place if judges have unrestricted freedom to substitute their own values? As Jefferson said: 

Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. 

To which Felix Frankfurter added: 

The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.

Underestimating The Republican Congress

There's a lot to criticize the Republicans in Congress for, but their conservative critics are often ignorant of the good the Republicans have done or ignore it. Kevin Williamson makes some good points in a recent article:

In reality, there is much to be said for the piecemeal, muddle-through approach of congressional Republicans, who have a majority in both houses but not a large enough one to override a presidential veto, which makes inaction their greatest power. In 2011 the Obama-Pelosi-Reid model of government had federal spending up to nearly a quarter of GDP, a level of federal spending more typically associated with 1942 or 1946, when Uncle Sam was engaged in some rather more serious business than subsidizing cowboy-poetry festivals in Harry Reid’s backyard. After the Republican takeover, that figure went below 20 percent of GDP, which is still a great deal higher than is ideal but is within spitting distance of the average federal tax haul. That means that we have a plausible path to a situation in which federal spending is too high but the budget is balanced, rather than a situation in which federal spending is too high and there are persistent deficits. Neither is ideal, but one is better than the other, and responsible adults cannot ignore that.

"Cucks"

Donald Trump has been tapping into popular anti-illegal immigrant sentiment. Ann Coulter and Katie McHugh (Breitbart front page editor) have jumped on his bandwagon. This dovetails with the "cuckservative" meme. Ex-Marine David French, a lawyer who takes on religious liberty cases for the ACLJ, did a couple of posts:

http://www.nationalreview.com/article/424277/cuckservative-slur-must-stop

http://www.nationalreview.com/corner/424225/ann-coulter-panders-cuckservative-crowd-she-denounces-gop-pandering-david-french

As he stated on Facebook, that generated quite a backlash, 

…and all others who've been following our social media and online battle with white nationalists these past couple days. Well, things got a little . . . how shall I put this . . . murdery last night. The comment board of Nancy's blog got flooded with gifts of murders, executions, and suicides. People posted photographs of mutilated bodies and photos of the most grotesque porn you can imagine. In short, things went from vile social media trolling to next-level disturbing. 

Let's quote a few tweets by Katie McHugh, to get a flavor of the opposition: 

Indian tribes never bothered to build any kind of civilization. They killed each other and chased bison. Yawn 

British settlers and their descendants built civilization. Indians never bothered to build more than a few teepees.  

As if Indians could ever build the highly-advanced welfare system that sustains their existence… lol 

Dear “native people,” Where is your space program? Discovery of the wheel? Civilization? 

Primitives who were chasing the rear end of a buffalo (& scalping Americans) before Englishmen built America.

I don't know what percentage of Trump supporters are white supremacists, but I think we should discuss the ideology (such as it is). Americans have legitimate grievances on the issue of illegal immigration. This is currently exacerbated by Obama's plan to unilaterally relocate Syrian "refugees" to the US. 

Because both parties have snubbed those grievances, that fuels nativism, xenophobia, and outright white supremacy. It begins to radicalize the issue, as the political vacuum is being filled by the Stormfront demographic. It's important to sort out valid concerns from fringe groups that use that as a pretext to give cover to their virulent ideology. 

i) There's certainly a sense in which a country belongs to the people who made it what it is, and not to invaders. However, nations have been invading other nations for millennia, and that includes "white invaders." 

ii) It's true that British settlers had a disproportionate role in founding the country. But even in that limited respect, McHugh's assertions are overbroad. Did the Brits build St. Augustine, Florida? Did the Brits build Louisiana? Didn't Jews and Huguenots help build Charleston? Didn't Chinese help build the Bay Area and the transcontinental railroad? And so on and so forth.

iii) A country is built over a period of decades, centuries, in some cases millennia. Various immigrant groups have been building the US. There's a difference between who founded a city or state, and how it developed over time. 

iv) Evidently, McHugh has never heard of pre-Columbian civilizations like the Inca, Aztec, Toltec, Zapotec, Maya, and Pueblo. Or African civilizations like Abyssinia. Or Asian civilizations like China, India, and Japan. Not to mention the contributions of modern-day Indians, Chinese, Japanese et al. to contemporary math, science, and technology. 

v) It's not a "race" that makes great contributions to math, science, art, architecture, music, drama, philosophy, and literature, but gifted individuals who comprise an infinitesimal faction of the "race" to which they belong. 

Likewise, you have cultural diffusion. The Greeks and Etruscans kick-started Roman civilization, which, in turn, kick-started French and Northern European civilization. Likewise, the Sumerians kick-started Assyrian and Babylonian civilization. 

vi) "Civilization" depends in part on natural resources. Some people-groups have more to work with than others. 

vii) There's also a lot of chronological cherry-picking in the comparison. A particular region may not produce a great civilization or high culture for centuries or millennia. And if it does achieve a period of cultural florescence, that may stall for centuries thereafter. Long periods of stasis without further "progress." 

viii) Then there's the question of how to define progress. Would a tropical island be better if it resembled Manhattan island? 

Monumental architecture is impressive, but monumentally silly. Likewise, just having the newest gadget doesn't necessarily improve the quality of life. Indeed, we can become slaves to innovation for its own sake. 

Some people prefer a simpler life. Some people prefer farming, ranching, hunting, fishing, gardening, chopping wood, riding a horse, &c. 

ix) Not to mention the question of how to define groups by race. What is "white"? Are Latinos white? What about Jews? The definition varies arbitrarily depending on who the xenophobe wishes to exclude. 

Apologetics and the suffering Christian

http://apologist2ndchristian1st.simplesite.com/417868823/3062858/posting/apologetics-and-the-suffering-christian

Federalism and illegal immigration

From what I can tell, many Trump supporters are single-issue voters. Their primary issue is illegal immigration.

That is, indeed, a massive problem, including welfare, identity theft, voter fraud, street gangs, public education, prison population, ER closings, &c. 

This is a bipartisan failure. Traditionally, Democrat officials pander to this constituency for votes while Republican officials pander to this constituency for cheap labor. 

However, judicial meddling is what gave illegal immigrants a foothold. In 1982, the Supreme Court (in Plyler v. Doe) concocted a new Constitutional right requiring American wage-earners to educate the children of illegal immigrants. Likewise, Federal judges struck down California Proposition 187.

Not surprisingly, many voters are incensed by how the power elite has circumvented the democratic process. In addition, there's the sense of injustice: if you cheat, and you hold out for long enough, the political establishment will eventually reward cheaters. 

However, solutions are harder to come by. How can a national (i.e. presidential) candidate win by taking a hardline on illegal immigration? Problem is, he needs enough electoral college votes to win. To do that, he must pick up some key states in the SE and SW. Yet those regions are illegal immigrant strongholds. Between the political map and electoral college math, he's caught in a vice.

At this stage, the best strategy might be to run on a Federalist plank with respect to immigration. Leave it up to the states to formulate their own policies. States that pander to illegal immigrants will become death spiral states while states taking a harder line will prosper. Businesses will flee death spiral states, accelerating the death spiral. Sometimes a social experiment must be allowed to fail to demonstrate how that policy was, indeed, a dismal failure. 

To make this work, Congress would have to pass a law limiting the subject-matter jurisdiction of the courts with respect to immigration. Congress has that general prerogative. It should be possible for a presidential candidate to run and win on Federalism–among other issues. And depending on the particular state, it's possible for politicians for local or statewide office to win while taking a hardline on illegal immigration. From what I can see, that's the best bet.