The Rule of Law vs. The Rule of Man

On Saturday I posted the "Quote of the Election" excerpted from a piece at Forbes.com by Peter Robinson. The piece was a discussion of Thomas Sowell's theory of "Competing Visions" as applied to the upcoming election. As I quoted in the previous post, the "Competing Visions" theory holds that two competing philosophies underlie Western thought:

Sowell calls one worldview the "constrained vision." It sees human nature as flawed or fallen, seeking to make the best of the possibilities that exist within that constraint. The competing worldview, which Sowell terms the "unconstrained vision," instead sees human nature as capable of continual improvement.

You can trace the constrained vision back to Aristotle; the unconstrained vision to Plato. But the neatest illustration of the two visions occurred during the great upheavals of the 18th century, the American and French revolutions.

The American Revolution embodied the constrained vision. "In the United States," Sowell says, "it was assumed from the outset that what you needed to do above all was minimize [the damage that could be done by] the flaws in human nature." The founders did so by composing a constitution of checks and balances. More than two centuries later, their work remains in place.

The French Revolution, by contrast, embodied the unconstrained vision. "In France," Sowell says, "the idea was that if you put the right people in charge--if you had a political Messiah--then problems would just go away." The result? The Terror, Napoleon and so many decades of instability that France finally sorted itself out only when Charles de Gaulle declared the Fifth Republic.

Today I found that Robinson had interviewed Sowell for his Hoover Institution video series "Uncommon Knowledge." The interview is in five parts being posted this week at NRO. Yesterday's was quite interesting. Here's my transcript of the pertinent exchange:

Peter Robinson: Let me give you a couple of quotations. John McCain in the presidential debate of October 16 on the kinds of judges he would nominate to the Supreme Court:

"I will find the best people in the United States of America who have a history of strict adherence to the Constitution and not legislating from the bench."

Barack Obama during the same debate:

"If a woman is out there trying to raise a family, trying to support her family and is being treated unfairly then the court has to stand up if nobody else will, and that's the kind of judge I want."

Thomas Sowell: That's unconstrained. That somehow or other there are people with the judicial robes on who can just decide these things ad hoc, which among other things would mean we would no longer really have law. You would discover, once you got into the courtroom in front of the judge, you would then discover what the decision is, but you would have no clue beforehand.

Robinson: So that would. . . A full embrace of the Unconstrained Vision, which Barack Obama seems intent on, would overturn the fundamental basis of American law which is a nation of laws, not of men, . . .

Sowell: Absolutely.

Robinson: . . . it would be a nation of men, of judges.

Sowell: Yes!

Robinson: Alright. September of this year the Rasmussen polling company asked this question: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents, or should it be guided mostly by a sense of fairness and justice?"

Eighty-two percent of McCain supporters said that the Supreme Court should base its decisions on the Constitution, 29% of Obama supporters agree, 11% of McCain supporters said that the Supreme Court should make its decisions on fairness, 49% of Obama supporters said that it should.

Now, here's the question: You've said McCain constrained, Obama unconstrained. But what this would seem to indicate, this polling data, that this is not just a debate taking place among politicians or American elites, it's reached very deep into the American public.

Sowell: Oh, absolutely.

Robinson: Forty-nine percent of Americans think the Supreme Court should. . .

Sowell: Of Obama supporters.

Robinson: Excuse me, 49% of Obama supporters, exactly. Does that startle you? Does it alarm you?

Sowell: It doesn't startle me, it depresses me. But you know this has been going on for a long time. People complain about a court decision on the basis that they wish it had turned out differently, but that isn't the judge's job. There's a wonderful case, and I wish I could remember what the title of it was, in which Clarence Thomas said that he really agreed with the position taken by one of the litigants in the case, but that he wasn't there to decide that issue. He was there to decide what did the law say? And the law said otherwise, and so he voted against them. You see the same thing in Oliver Wendell Holmes where in a number of cases he makes very cutting disparagements of one of the litigants in the case, and then votes in favor of them, because "I'm not here to decide what the merit is." One of his decisions, he says "I am not at liberty to discuss the justice of the Act. The Act is what it is, and once I know what that is, that is the decision I have to make."

Robinson: Well then, if you see . . . Well, one more question here. You write "The unconstrained vision" - again, I'm quoting you - "has tended historically toward creating more equallized economic and social conditions in society, even if the means chosen implied great inequality in the right to decide such issues and choose such means."

Inequality and the right to decide issues. Does that tell us why the Left in the United States seems so much more comfortable with having courts make social policy?

Sowell: Oh absolutely.

Robinson: That's what's going on.

Sowell: Absolutely. They want equality of outcomes and they will choose how to make the outcomes equal. But they don't want equality of choice on the part of the people themselves. Many of the liberals say that they're for the familiy because they're for creating all kinds of goodies to give to the families, but they want to take away the family's fundamental function which is making decisions for members of the family itself, particularly the younger members who aren't yet grown.

I am reminded of some quotes from Antonin Scalia that I've used here before:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

What 'we the people' want most of all is someone who will agree with us as to what the evolving constitution says.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say?

The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike.

And Justice Thomas when faced with an "Unconstrained Vision" decision by the Court:

Something has gone seriously awry with this Court’s interpretation of the Constitution. - Clarence Thomas (dissenting) Kelo v New London (2005)

They didn't interpret the Constitution, they used two previous bad precedents and ignored it.

And got a decision that the five Left-leaning Justices thought was "Just."

Without regard for, you know, THE LAW. Just like Barack "I'm Not a Socialist" Obama wants. "Justices" who think that the headline "World to End Tomorrow: Women and Minorities Hardest Hit" is not a joke.

The fact that 49% of Obama supporters polled want the Supreme Court to ignore the Constitution depresses me as well. As I have written about endlessly in here previously, this is a reflection of the fact that we don't teach philosophy as a subject in schools here, though there's a lot of indoctrination going on undercover (and often openly) that promotes this kind of thinking. (And not a lot of indoctrination going on that counters it.)

It goes back to one of the earliest themes of this blog: What is a RIGHT?

I got to listen to a little of Rush Limbaugh's show today, specifically the part where he played excerpts from an FDR speech (he was a little vague on the source - a fireside chat, or FDR's fourth Inaugural address?). Here's the pertinent part:

We have come to a clearer realization of the fact, however, that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men. People who are hungry, people who are out of a job, are the stuff of which dictatorships are made. In our day these economic proofs have become accepted as self-evident. We have accepted, so to speak, a Second Bill of Rights under which a new basis of security and prosperity can be established for all, regardless of station or race or creed.

This could have come directly out of Marx's mouth, or out of Das Kapital

The right to a useful and remunerative job in the industry -- our shops, our farms, our mines of the nation. The right to earn enough to provide adequate food and clothing and recreation. The right of every family to a decent home. The right to adequate medical care. The opportunity to achieve and enjoy good health. The right to adequate protection from economic fear, from old age and sickness and accident and unemployment. Finally, the right to a good education.

Well hell, what about the right to feel safe?

But more and more people believe that it is the job of government to provide these "rights." And, as I noted back at the beginning of this blog, a "Right" is what the majority of the population in a society believes it is.

At least until they smack their noses on concrete reality.

Or crater in from a much higher falling point.

This piece also reminded me that in 2005 Laurence Tribe announced that he would not be releasing a third revision of Volume II of his textbook American Constitutional Law. As I excerpted at the time:

Tribe's announcement came April 29 in a letter to Justice Stephen Breyer, who had asked him casually how he was coming on the second volume, which was scheduled to cover individual rights issues. (My emphasis.)

Tribe decided to write Breyer back. His "Dear Steve" letter and a 12-page elaboration will be published by Green Bag, Davies' law review at George Mason.

Tribe, 63, said neither personal factors nor ennui were at issue in his decision not to proceed. "It's not my health, which is fine," he wrote. "Or that I've lost interest in the questions the unpublished chapters would have discussed or the drive to pursue them doggedly."

Rather, Tribe said he had made his decision because, as he told Breyer, "conflict over basic constitutional premises is today at a fever pitch," moving rapidly in unpredictable directions. "No treatise, in my sense of that term, can be true to this moment in our constitutional history -- to its conflicts, innovations and complexities."

As Thomas Sowell noted above: "That's unconstrained. That somehow or other there are people with the judicial robes on who can just decide these things ad hoc, which among other things would mean we would no longer really have law. You would discover, once you got into the courtroom in front of the judge, you would then discover what the decision is, but you would have no clue beforehand."

Tribe implies that a mere catalog or hornbook reciting recent decisions might be achievable, even if rapidly outdated. But a treatise seeking to explain constitutional themes and pull together seemingly disparate doctrines can't be done now, Tribe asserts. "I do not have, nor do I believe I have seen, a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."

In other words, (my interpretation) too many judges are making it up as they go along.

The philosophy of the Founders has been lost, and instead we have too many people in robes on benches making ad hoc decisions based on "fairness" or whatever floats their boats rather than on the LAW.

Now, I have also argued that one of, if not the primary flaw in our legal system is that there is insufficient review of prior legal decisions. It seems that bad precedent is very seldom overturned, but that that particular duty should fall on the shoulders of the Supreme Court. Unfortunately, they've been failing at it, as Justice Thomas noted in his Kelo dissent. We were very lucky with the Heller decision, but a lot of that credit goes to Alan Gura for so carefully selecting the case, the plaintiffs and the venue.

It should not have even been close.

But Barack "Spread the Wealth" Obama likes it this way, and wants more of it.

If a woman is out there trying to raise a family, trying to support her family and is being treated unfairly then the court has to stand up if nobody else will, and that's the kind of judge I want.

I want one who applies the law, because I want to live in a country where you can predict what the Courts will do, and what they will do is uphold my individual rights.