- How to democratize the US Supreme Court Henry Farrell, Crooked Timber
- How to democratize the US Supreme Court Samuel Moyn, Boston Review
- How to democratize the American political system Corey Robin, Jacobin
- The Hébertists, or Exaggerators, went to the guillotine in March of 1794 Wikipedia
I listened to NPR this Sunday morning. (I make myself do it every day or nearly so.) The commentators sounded as if they believe that but for a small sliver of testimony lacking, it would have been definitely proven that Justice Kavanaugh was a rapist at seventeen. There was no hint of recognition that Ms Ford is a proven public liar. (I distinguish carefully between hazy, confused, or artificial memory on the one hand, and lies, which are deliberate conscious constructions, on the other.) Ms Ford lied about being claustrophobic and she lied about her fear of flying.
She should not have been believed at all because a person who tells untruths about yesterday cannot be treated seriously about what she said happened thirty-five years ago. These lies are treated by the media as insignificant inaccuracies and Justice’s Kavanaugh’s six previous FBI investigations as unimportant. We should have been spared the whole undignified circus except for the mendacity, the bad faith of the Dems, beginning with Sen. Feinstein. By the way, Feinstein used to be my model of an honest elected liberal. Finished; I don’t have such a model anymore.
We will soon know if I am wrong. As I have said before, if Ms Ford is telling the truth, she won’t let the outrage of Kavanaugh’s confirmation go unpunished. She will use the million-dollar war chest she was gifted, her notoriety, and her good team of lying attorneys to sue Mr Kavanaugh. I am told there is no statute of limitation for attempted rape where the imaginary event took place. If she does not sue, what are we supposed to think, that the rape wasn’t that bad after all?
I don’t rejoice much in the ultimate victory. Much damage has been done, including a degree of legitimation of the idea that the presumption of innocence is not actually central to civilization. And the rage of the fascist hordes we saw displayed in the Capitol is not going to dissipate. Those people are going away sincerely convinced that not only did a rapist get away with it (as usual!), but that he is going to be the deciding vote on the elimination of women “reproductive rights.” In fact, Roe and Wade is nowhere high on the Republican agenda. In fact, the Supreme Court does not reach out for cases; a relevant case would have to come up. In fact, in the unlikely case Roe and Wade were reversed, the issue would go back to the individual states where it belongs, constitutionally speaking.
It’s hard to tell whether those people are genuine imbeciles, or fooling themselves, or simply lying. Incidentally, note the Orwellian language we have come to accept: “Reproductive Rights” refers to the right to terminate a pregnancy surgically, like my driver’s license gives me the right to not drive! (In case you are wondering, I am for keeping abortion legal by virtue of the ethical principle that we must accept big evils to avoid even bigger evils.)
Of course, predictably, I will be accused of making light of gang rape. No, Ms, YOU are trivializing the violent crime of rape. Even if we took Ms Ford’s words for granted, at 15, after “one beer,” a 17-year old boy groped her through her clothes but fortunately she happened to be wearing a one piece bathing suit! In the meantime, thousands of women suffer real rape in war zones and American feminists keep shamefully silent. The probable idea here is that if you are a woman violently raped by soldiers who are black or brown skinned, it does not really count as rape.
I hope the next partial elections, a month away, turns from a referendum on Mr Trump to one on the Democratic Party’s new fascism.
Please, think of sharing this.
It turns out that SCOTUS appointments have had a long history of dividing American society. An excerpt:
9. Roger Taney (1836-64). Taney rose up the political ranks as Andrew Jackson’s right-hand man. Jackson tried to get him on the Supreme Court in 1835 but his nomination was rejected by anti-Jacksonian Whigs in the Senate. After the Whigs were swept away in the 1836 election campaign, Jackson renominated Taney, but this time for the position of Chief Justice, and he was confirmed 21-15 after a bitter debate in the Senate. The Taney court is responsible for the Dred Scott case that tore the fledgling republic apart, and for helping Jackson abolish the national bank. Taney and Lincoln clashed often, too, as Taney ruled that Lincoln’s suspension of habeas corpus was unconstitutional, but Taney never did go home during the Civil War and served out his term as Chief Justice until his death in 1864. He holds the second-longest tenure of any Chief Justice.
Please, read the rest, and try to remember: this divisiveness is a feature of the system, not a bug.
- Neoliberalism is making the world much more equal Scott Sumner, EconLog
- How effective are Islamic states at satisfying the religious needs of their citizens? Nile Green, Los Angeles Review of Books
- Socialism won’t get rid of bosses, either Christopher Freiman, Bleeding Heart Libertarians
- Hayekian communism Branko Milanovic, globalinequality
This article by Matt McManus (@MattPolProff) recently published at Quillette made me remember H.L.A. Hart’s theory of law and the problems derived from the open texture of language, a concept borrowed by him from Friedrich Waismann, an Austrian Mathematician and philosopher of the Vienna Circle. Many authors would rather distinguish “open texture” from vagueness: being the latter a proper linguistic matter, the former is related to the dynamic of the experience. As Kyle Wallace summarized the problem: “certain expressions are open textured simply because there is always the possibility that in some new experience we may be uncertain whether or not the new expression is applicable.”
However, Brian Bix, in his “H.L.A. Hart and the ‘open texture’ of language,” argues that, despite the concept of “open texture” being a loan from Waismann’s philosophy, the use gave to the term by Hart is not derogatory at all. With respect to Hart’s point of view, the “open texture” of the law is rather an advantage, since it endows the judges with a discretionary power to adjust the text of the law to the changing experience.
Concerning individual liberty, the laudatory qualification of the open texture of the law made by Hart and Bix might be shared by the jurists of the Common Law tradition, but it hardly would be accepted by anyone from the Civil Law System. According to the former, every discretionary power enabled to the judges helps to prevent the political power from menacing individual liberties, while, following the latter, the written word of the law, passed by a legislative assembly according to constitutional proceedings, is the main guarantee of individual rights.
But the subject of the open texture of the language of the law acquires a new dimension when it is related to the coordination problem derived from the limits to knowledge in society. As it was distinguished by F. A. Hayek in the last chapter of Sensory Order, we could talk about two types of limits to knowledge: the relative and the absolute. The relative limit to knowledge depends upon the sharpness of our instruments used to gather information, whereas the absolute limit to knowledge is sealed by the increasing degrees of abstraction that constitute every classification system. Since every new experience demands the rearrangement of the current system of classification we use to order our perception of reality, the description of this feedback process requires a supplementary system of classification of a higher level of complexity. The progress of the subject of knowledge into higher levels of abstraction reaches an unconquerable limit when he is tasked with the full study of himself.
Thus, we could ascertain that the judiciary function would be enough to fulfill the problems that could arise from the open texture of law, since the judge pronounces the content of the law not in general terms, but in concrete definitions in order to solve a case. In this labour, the judge not only applies the positive law, but he might “discover” abstract principles that become relevant in order to the given new experiences that begot the controversy over the content of the law he is due to solve. This function of “immanent critique” of the positive law by the judiciary system is well discussed by F. A. Hayek in the fifth chapter of his Law, Legislation and Liberty. Since the judiciary function solves in every concrete case the coordination problem derived from the fragmentation of knowledge in society, the open texture of the law does not make it opaque to the citizens.
That notwithstanding, the open texture of the law remains as a systemic limit to the legislative assemblies to define the whole content of the law. Thus, since the whole content of the law can only be achieved in a given concrete case by a judge solving a particular controversy, every central planner would have to accomplish his model of society not through decisions based on principles, but on expediency. Central planning and rule of law will be always set to collide. In this sense, the concept of open texture of the law might work as a powerful argument for the impossibility of every central planning to be performed, sooner or later, under the rule of law.
Vox, a left-wing publication founded by a fellow Bruin (Ezra Klein), has a pretty good piece up on Puerto Rico’s inability to “gain statehood,” i.e. to become a full-fledged member of the American federation. I say “pretty good” instead of great because the author, Alexia Fernández Campbell, does too much Trump-bashing and not enough focusing on the issue at hand.
Look, I didn’t vote for Trump. I don’t like Trump. But the Left’s infatuation with him is unhealthy, the way the Right’s infatuation with Obama was unhealthy. When Obama was president, I wanted so badly to rely on the right-leaning press for excellent opposition coverage of the Obama administration but, with few exceptions, all I got was garbage. The experience jaded me, and I expect less of the press, so the Left’s inability to look at the Trump administration’s many wrongdoings with clear-eyed sobriety is annoying rather than disheartening.
For instance, Campbell points out many problems facing the pro-statehood faction in Puerto Rico: a century-old racist SCOTUS ruling, the lack of a clearly-defined process for gaining statehood, anti-statehood factions in Puerto Rico, Washington’s lack of interest in adding another state, and Donald Trump being A Very Bad Man. One of these problems doesn’t fit into Puerto Rico’s decades-long campaign to gain statehood. Can you guess which one? Annoying!
At any rate, Campbell misses one of the problems facing pro-statehood factions: Puerto Rico would be a “blue” state (overseas readers: “blue state” means a reliable vote for the Democratic Party). If Puerto Rico really wants to become a member of the American federation, its policymakers would do well to start looking for a “red” state (reliable vote for the Republican Party) lobbying partner.
- The renewed relevance of neoconservatism Rachel Lu, the Week
- The idea of a Muslim world is both modern and misleading Cemil Aydin, Aeon
- Democratic socialism threatens minorities Conor Friedersdorf, the Atlantic
- The world economy’s urban future Parag Khanna, Project Syndicate