By Selwyn Duke

There is an old saying, “A man who
is capable of deceiving only others is not nearly as dangerous as a man who is
capable of deceiving himself.”  Truer
words were never spoken.  When a person
lies, he is deceiving others about reality, but at least knows he is engaging
in deception.  But when someone
rationalizes – which is when you lie to yourself – he is truly lost.  He then not only bends reality for others as a
by-product of bending it for himself, but he can render untruths without having
to lie.  This is because a lie is when
you tell an untruth knowing it’s
untrue.  It’s much like when the
ever-prevaricating George Costanza character on Seinfeld gave his advice for
beating a polygraph machine, “just remember . . . it’s not a lie if you believe
it.”

I think of this when I hear Supreme
Court Justice Ruth Bader-Ginsburg tout the use of foreign law by American
judges sworn to uphold the Constitution – that would be our constitution. Speaking about this recently
at Ohio State University’s Moritz College of Law, she said,

“I frankly don’t understand all the
brouhaha lately from Congress and even from some of my colleagues about
referring to foreign law [when handing down court rulings] . . . .”

Well, you know what?  I believe her.  She and her fellow travelers really don’t understand.  That is, they
don’t grasp the correct legal philosophy well enough to understand what they’re
rejecting.

Note that I called the legal
philosophy “correct” and not “strict constructionism,” and for good reason.  When you call it correct, it follows that
other positions are incorrect.  But what
is the other side of the coin of constructionism?  It would be living-document legal
philosophies.  To accept these
categorizations implies that we just have a bunch of different credible
perspectives on constitutional law, and who is to say what is correct?  Call it, legal relativism.  But more on this in a moment.

At her speech at Moritz College, Ginsburg served notice that – like so many in legal circles today – she is in
fact very confused about her role on the bench. 
As an example of this, Adam Liptak at The New York Times tells
us,

 “She added that the failure to engage foreign
decisions had resulted in diminished influence for the United States Supreme
Court.

The Canadian Supreme Court, she
said, is ‘probably cited more widely abroad than the U.S. Supreme Court.’ There
is one reason for that, she said: ‘You will not be listened to if you don’t
listen to others.’”

This is a striking statement, and
it vindicates something I’ve long believed.  I once wrote that part of the problem with our
judges is that they’re not content to just
be judges.  A judge is much like an umpire
at a baseball game.  It’s not his place
to make or alter the rulebook (Constitution); his is simply to determine whether
or not it has been violated.  And whether
he likes or dislikes a given rule should be of no consequence.

Yet today we have judges who would
be kings.  They’re not satisfied to just umpire;
that’s too small a role for them.  They
want to be agents of activism, molders of men, shapers of society – and they
want the ego satisfaction attending such status.  They want to be respected by their peers
around the world, fellow members of the global judicial class.  This is evidenced in Ginsburg’s statements.  Why should she care if the Canadian Supreme Court is cited more than ours?  Popularity doesn’t equate to perspicacity.  After all, rap stars are far more popular than
the most sublime moral philosophers.  And,
as for the matter of whether foreigners listen to her court, here’s a
newsflash: It matters not to normal Americans whether they do or not.  Foreigners are not governed by American law;
thus, our judges’ rulings may be irrelevant to them.  And foreign rulings should certainly be
irrelevant to our judges.

Thus, it seems these things matter
to Ginsburg because she isn’t satisfied with her role (a common failing of
man).  She wants prestige and respect;
she wants to set trends.  Perhaps she
should have started a cult.  I hear
there’s some land available in northwestern Guyana.

Yet, living-document justices are
comforted in their misfeasance by rationalizations they conjure up to justify
it.  One that Ginsburg has used is to
criticize the view that the Constitution is “stuck in time.”  But she has it wrong.  It is not stuck in time but stuck in law.  Law can be changed through legal measures – in
the case of the Constitution, the amendment process – but until then it’s
supposed to be “stuck.”  The alternative
to being stuck in law is being subject to the caprice of those with greater
power.  This would mean that you could
appear before a judge and he could rule based on whim or that a policeman could
arrest you because he believed he had just experienced an epiphany about what
the law should be.  In other words, this
thinking is no different from the rule of kings, where a Herod could deliver
John the Baptist’s head on a plate to please his wife.  It is why G.K. Chesterton said, “There are
only two ways of governing: by a rule and by a ruler.”  It is why we should have “the rule of law” and
not the rule of lawyers. 

And this is why some of us have
likened our Supreme Court to a de facto oligarchy.  After all, on what basis does an oligarchy
rule?  Its members make decisions guided
by nothing more than the dictates of their own consciences.  Thus, people can put as much lipstick on this
pig as they want.  They can wrap their
living-document legal philosophy in a million pseudo-intellectual arguments.  But, at the end of the day, it boils down to
might makes right.  When justices depart
from constitutional constraints, they cannot be voted out of office or
fired.  The only thing constraining them then
is their own consciences – just as with an oligarchy

This is why I would have far more respect
for someone who overtly defies the law (think Martin Luther King and civil
disobedience) and simply refuses to comply.  For he is deceiving neither himself nor
others.  He is simply saying that the law
is wrong, that it violates a higher law and that it’s the duty of all good
people to defy it.  It is the difference
between an open declaration of war and the use of subterfuge and
subversion.    

This brings us to a question.  If Supreme Court Justices can rule contrary to
the letter and spirit of the supreme law of the land on the basis that the
Constitution is not “stuck in time,” why can lower courts not apply the same
reasoning to what is called “settled law” (areas where the Supreme Court has
interpreted the Constitution “definitively”)?  After all, how can law ever be “settled” if it
can never be viewed as “stuck”?  Why can
a lower court not say, “Well, sure, the Supreme Court ruled that way five years
ago, but times are a-changin’ fast. The law has a different meaning today”?  If the Black Robes won’t be constrained by
the Constitution, why should others be constrained by their unconstitutional
precedents?         

We now come to the supreme arrogance
of our oligarchs-cum-jurists.  For their
living-law philosophy isn’t for all, is it?  It’s not for the citizen; for him law is stuck
in time.  It’s not for the cop on the
beat; interpretation isn’t his luxury. It’s not for the lower-court judge; for
him precedent is to be pre-eminent.  It’s
not even for the president, for the laws he signs are subject to Supreme Court
judgments.  And judgments based on what?  Not the Constitution, obviously.  It is again merely their own judgment. 

This raises the question of why we
should respect the rulings of these usurpers.  If
they will not view the Constitution as being stuck in law, why should we view
the law as being stuck in courts?  Are
the dictates of black-robed oligarchs to be viewed as the only immutable
elements in an ever-changing universe of laws?  Oh, ignoring court rulings would lead to a
breakdown in the rule of law and this isn’t a good thing?

Exactly.

The point is that activist judges
undermine the rule of law by setting an example of contempt for it.  Others are then placed in the position of
asking what adherence to the rule of law really means.  Should they defer to court judgments made by
those who don’t view themselves as constrained by law?  Or, should they rather use their own judgment
– as the justices are doing – as to the real meaning of the supreme law of the
land, the Constitution?

This is what living-document legal
rationalizations breed.  And it is why
I’ve often said that all our designations for jurists, such as “constructionist”
and “pragmatist,” are nonsense.  Because,
really, there are only two kinds of justices: Good justices and bad
justices.  Good ones do their job and
abide by the Constitution.  Bad ones
lawyer the law.

Hey, maybe Ginsburg and her fellow
travelers should just be honest and boil this down to its bare essence. They
could simply quote infamous occultist Aleister Crowley and say, “Do what thou
wilt shall be the whole of the law.”

                     © 2009 Selwyn Duke — All Rights Reserved