Friday, July 06, 2007

The rule of law

"One proposal is that it simply applies the law and the Constitution. But applying requires interrpetation when something isn't clear. Here are two views on how this can be done. One might think that when the Supreme Court interprets something wrongly it is not law and should not be followed. On the other hand, one might think that when it gets it wrong it is still binding as law until that decision gets overturned. The standard view is that the second approach is correct. If the Supreme Court decides something wrongly, we could simply ignore it and go with what the Constitution really says. The problem is that different people will have different views on what the Constitution says, and there needs to be some body to declare what it says, even if they get it wrong. It is simply no rule of law to allow everyone to take the Constitution to say whatever they want it to say. It is far better to have a rule of law, have a Supreme Court who interprets the Consitution in a binding way, and sometimes (or even often) gets it wrong."

Jeremy has set up a false dichotomy. He fails to consider the Jeffersonian alternative:

"My construction of the Constitution is…that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

—Thomas Jefferson to Spencer Roane, 1819. ME 15:214


  1. So you end up with Adama's marines and Roslin's bodyguards in a standoff with pistols drawn on the Capitol steps? Is that really any better?

  2. Since the Executive has all the real firepower at its disposal, I somehow doubt that the Capitol Police would be much of a match for the Army, Navy, Air Force, and Marines. So methinks the Capitol Police would stage a sickout on the day of battle.

    There's no system of gov't that can't be abused. But there's a twofold problem with SCOTUS:

    i) The idea that the least accountable branch of gov't should be in a position to overrule our elective representatives, and thereby subvert the democratic process.

    ii) The problem of elites, which quickly lose touch with what normal people value. Indeed, they pride themselves on being a class apart.

    I'm not romanticizing the will of the people. The majority of the electorate is decadent to one degree or another.

    However, common grace preserves some common sense values.

    As I noted recently, there's a basic divide between liberal and conservative political philosophy. Liberals think that we need an upper class of official grown-ups who dictate public policy to the rest of us.

    I don't consider the will of the people to be all that morally reliable. But I don't consider elite opinion to be any better. Indeed, it's often worse.

    And so I don't approve of a system in which one subset of adults acts as self-appointed parents to police another set of adults—the vast majority.

  3. < "Since the Executive has all the real firepower at its disposal"

    That's assuming there's not a critical mass of Lee Adama types in the military who don't consider it mutiny to refuse an order from a Commander in Chief who's defying a Supreme Court declaration of unconstitutionality (or a Congressional vote to impeach and remove).

    As for the intent of the Founders, they feared the Executive most precisely for this reason - the CX has the command and (normally) the unquestioning allegiance of the military. In 1787, the controlling precedent in this regard was one O Cromwell and the US Framers were very concerned that the President not copy his example.

    I agree with you completely about elite vs popular opinion, though.